[Federal Register Volume 71, Number 187 (Wednesday, September 27, 2006)]
[Proposed Rules]
[Pages 56446-56467]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-8263]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No.060901235-6235-01; I.D. 082406C]
RIN 0648-AQ87


Fisheries of the Northeastern United States; Amendment 1 to the 
Atlantic Herring Fishery Management Plan

AGENCY:  National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION:  Proposed rule, request for comments.

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SUMMARY:  NMFS proposes regulations to implement measures in Amendment 
1 to the Atlantic Herring Fishery Management Plan (FMP). Amendment 1 
was developed by the New England Fishery Management Council (Council) 
to establish a limited access program, and to make other changes in the 
management of the Atlantic herring fishery. The Amendment 1 measures 
being proposed include: A limited access program; an open access 
incidental catch permit; a change in the management area boundaries; 
establishment of a purse seine/fixed gear-only area; establishment of a 
maximum sustainable yield (MSY) proxy; an approach to determining the 
distribution of area-specific Total Allowable Catches (TACs); a multi-
year specifications process; a research quota set-aside for herring-
related research; a set-aside for fixed gear fisheries; a change in the 
midwater trawl gear definition; and additional measures that could be 
implemented through the framework adjustment process. The intent of 
this action is to provide efficient management of the Atlantic herring 
fishery and to meet conservation objectives.

DATES:  Public comments must be received (see ADDRESSES) no later than 
5 p.m. eastern daylight time on November 13, 2006.

ADDRESSES:  Copies of supporting documents used by the Council, 
including the Final Supplemental Environmental Impact Statement (FSEIS) 
and Regulatory Impact Review (RIR)/Initial Regulatory Flexibility 
Analysis (IRFA), are available from Paul J. Howard, Executive Director, 
New England Fishery Management Council, 50 Water Street, Mill 2, 
Newburyport, MA 01950. The FSEIS/RIR/IRFA is accessible via the 
Internet at http:/www.nero.nmfs.gov.
    Written comments on the proposed rule may be sent by any of the 
following methods:
    <bullet> Mail to Patricia A. Kurkul, Regional Administrator, NMFS, 
Northeast Regional Office, One Blackburn Drive, Gloucester, MA 01930. 
Mark the outside of the envelope ``Comments Herring Amendment 1''
    <bullet> Fax to Patricia A. Kurkul (978) 281-9135;
    <bullet> E-mail to the following address: <a href="/cdn-cgi/l/email-protection#074f627575466a62696336476968666629606871"><span class="__cf_email__" data-cfemail="276f425555664a42494316674948464609404851">[email protected]</span></a>. 
Include in the subject line of the e-mail comment the following 
document identifier: ``Comments HerrPropRuleAmend1.''
    <bullet> Electronically through the Federal e-Rulemaking portal: 
http://www.regulations.gov.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information

[[Page 56447]]

requirements contained in this proposed rule should be submitted to the 
Regional Administrator at the address above and by e-mail to <a href="/cdn-cgi/l/email-protection#e3a782958a87bcb18c9790888691a38c8e81cd868c93cd848c95"><span class="__cf_email__" data-cfemail="b1f5d0c7d8d5eee3dec5c2dad4c3f1dedcd39fd4dec19fd6dec7">[email protected]</span></a>, or fax to (202) 395-7285.

FOR FURTHER INFORMATION CONTACT:  Eric Jay Dolin, Fishery Policy 
Analyst, (978) 281-9259, fax (978) 281-9135.

SUPPLEMENTARY INFORMATION: The primary purpose of Amendment 1 is to 
modify the management program for the Atlantic herring fishery by 
implementing a limited access program to better match the capacity of 
the fleet to the resource. The amendment also would modify other 
management measures so that the Atlantic herring resource is managed 
more efficiently and sustainably.
    In July 1999, the Council voted to develop a limited or controlled 
access program for the herring fishery, and NMFS, at the request of the 
Council, established September 16, 1999 (64 FR 50266), as a control 
date for the Atlantic herring fishery in Federal waters. Scoping 
meetings for an amendment to FMP were conducted in February 2000, 
shortly after completion of the FMP, with public hearings taking place 
that month in Maine, Massachusetts, Rhode Island, and New Jersey. In 
April 2003, the Council re-initiated scoping, holding public hearings 
in April and May of that year in Maine, Massachusetts, and New Jersey.
    During both rounds of scoping, comments were sought on limited/
controlled access in the herring fishery, particularly in Area 1A, the 
inshore Gulf of Maine (GOM), because at that time the concern about 
excess capacity in the fishery was focused on Area 1A. The TAC in this 
area has represented at least 60 percent of the total landings of this 
fishery since the FMP was implemented, and the area has been closed to 
directed fishing because the TACs for that area was caught every year. 
As a result, the Council concluded that the capacity in this area 
should be restricted to avoid problems that result from excess fishing 
capacity, such as a race to fish as increasing numbers of vessels try 
to catch herring before the TAC is attained and the directed fishery is 
closed.
    Although TACs in Areas 1B, 2, and 3 (southern New England, the Mid-
Atlantic, and Georges Bank (GB), have not been fully harvested since 
the implementation of the FMP (with the exception of Area 1B during the 
2001 and 2004 fishing years), the Council concluded that sufficient 
capacity currently exists for the fleet to harvest the TACs in those 
areas, and this amendment proposes a limited access program for these 
areas as well. By taking such action now, the Council hopes to avoid 
future problems with excess capacity in these areas.
    During the development of Amendment 1, both as a result of issues 
raised by the Council and by the public during scoping, a variety of 
elements were added to Amendment 1, all of which are intended to 
improve the management of the fishery and contribute to the 
sustainability of the stock. These include an open access incidental 
catch permit; a change in the management area boundaries; establishment 
of a purse seine/fixed gear-only area (PS/FG); establishment of an MSY 
proxy; an approach to determining the distribution of area-specific 
TACs; a multi-year specifications process; a research quota set aside 
for herring-related research; a set-aside for fixed gear fisheries; the 
inclusion of the Maine fixed gear fishery catch in New Brunswick weir 
fishery catch; measures to address bycatch of multispecies in the 
herring fishery; a change in the midwater trawl gear definition; and 
additional measures that can be implemented through the framework 
adjustment process.

Relation to Existing Herring Regulations

    In Amendment 1, the Council noted that it intended to maintain 
existing herring management measures in effect unless they were 
explicitly revised in Amendment 1. However, NMFS is proposing to revise 
existing provisions in Sec.  648.13 related to the transfer of fish at 
sea in order to enforce the possession restrictions proposed in 
Amendment 1. These revisions do not make any substantive change to the 
regulations, nor do they apply any requirements beyond those proposed 
by the Council. They simply make it clear that the possession limits 
proposed in Amendment 1 apply whether the permitted herring vessel is 
landing on shore or transferring at sea. /NMFS invites public comment 
on these revisions in order to ensure that they are consistent with the 
Council's intent in creating the varying possession restrictions.
    Amendment 1 would establish four classes of vessel permits with 
associated possession limits: (1) The limited access permit for all 
areas would authorize a vessel to harvest herring from any herring 
management area without possession restrictions until 95 percent of the 
management area TAC is attained; (2) the limited access permit for 
Areas 2 and 3 would authorize a vessel to harvest herring from those 
management areas without possession restrictions until 95 percent of 
the management area TAC is attained; (3) the limited access incidental 
catch permit would authorize a vessel to harvest up to 55,000 lb (25 
mt) of herring per trip (with one landing allowed per calendar day) 
from any herring management area until 95 percent of the management 
area TAC is attained; and (4) the open access incidental catch permit 
would authorize a vessel to harvest up to 6,600 lb (3 mt) of herring 
per trip (with one landing allowed per calendar day) from any area 
until 95 percent of the management area TAC is attained. Upon 
attainment of 95 percent of any management area TAC, the directed 
fishery would be closed and all herring vessels would be limited to 
2,000 lb (907.2 kg) of herring per trip harvested from that area (with 
only one landing allowed per calendar day).
    To assure that vessels harvest herring only as authorized by the 
conditions of their vessel permit, NMFS proposes to specify that the 
transfer of fish at sea can occur only if the vessel transferring the 
herring complies with the possession limit restrictions outlined above. 
This is intended to assure that the provision maintains the integrity 
of the possession limits.
    In addition, NMFS notes that some of the restrictions currently 
specified in Letters of Authorization (LOAs) for transferring herring 
at sea and serving as a carrier for herring were not reflected in the 
regulations. To rectify this inconsistency, NMFS has added text to the 
regulations to reflect all of the requirements of the LOAs.
    Finally, NMFS has revised the permitting requirements for at-sea 
processing vessels. The existing herring regulations require such 
vessels to be issued a vessel permit for at-sea processing. In 
addition, such vessels are subject to dealer reporting requirements in 
Sec.  648.7(a). This proposed rule would require at-sea processing 
vessels to obtain dealer permits rather than vessel permits. This would 
be consistent with the reporting requirement, and with the at-sea 
processor requirement of the Atlantic mackerel fishery.

Particular Issues of Concern

    NMFS requests particular scrutiny of the regulations at Sec.  
648.200(b)(3) concerning the specification of TAC reserves in the 
specifications-setting process. As currently written, the regulations 
allow the Council to set aside a reserve of herring from any of the 
management areas, to be allocated at the discretion of the Regional 
Administrator based on the progress of the fishery toward the 
utilization of the area TACs. Because the reserve has

[[Page 56448]]

never been tapped, and in recent years the Council has not elected to 
set a reserve, NMFS requests the Council and the public to consider the 
need to maintain the reserve option as part of the specifications 
process.

Background

    At its final meeting for Amendment 1, the Council separated the 
measures to address bycatch in the herring fishery from Amendment 1 to 
the FMP, and agreed to submit these measures separately as Framework 43 
to the Northeast Multispecies FMP (Framework 43). The measures 
contained in Framework 43 were included in the Draft Supplemental 
Environmental Impact Statement (DSEIS) and public hearing document for 
Amendment 1 to the Atlantic Herring FMP. The Council voted on February 
2, 2006, to adopt the measures in Amendment 1 and Framework 43, but to 
submit Framework 43 in advance of Amendment 1 in order to establish 
measures for the fishery as soon as possible during the 2006 summer 
season. The proposed rule for Framework 43 was published in the Federal 
Register on June 21, 2006 (71 FR 35600), with public comment through 
July 6, 2006. The final rule was published on August 15, 2006 (71 FR 
46871), and was effective upon publication. The Council intended that 
all of the provisions in Framework 43, which applied to Category 1 
vessels, would apply to limited access herring vessels if and when 
Amendment 1 was implemented. The background section for the final rule 
to Framework 43 included the following text, explaining this 
transition. ``the public should be aware that the Council is proposing 
to revise the Atlantic herring vessel permit requirements in Amendment 
1. Amendment, which has been submitted to NMFS for review, would revise 
the vessel permitting requirements for the herring fishery by 
establishing limited access permits for vessels that fish for large 
amounts of herring, and maintain an open access permit for vessels that 
catch herring incidentally. If the limited access permit measures 
proposed in Amendment 1 are approved and implemented by NMFS, the 
measures proposed in this rule would, in the future, be applicable to 
all vessels issued limited access permits.'' As a result, NMFS proposes 
to revise the Framework 43 regulations to clarify that the bycatch 
provisions, which under Framework 43 apply to Category 1 herring 
vessels, would apply to vessels permitted under the new limited access 
program established under Amendment 1.
    The notice of availability for the DSEIS, which analyzed the 
impacts of all of the measures under consideration in Amendment 1 and 
Framework 43, was published in the Federal Register on September 9, 
2005 (70 FR 53657), with public comment accepted through October 24, 
2005. Public hearings were held in October, in six locations from Maine 
to New Jersey. At its January 31-February 2, 2006, meeting, the Council 
voted to adopt Amendment 1 for submission to NMFS, and it submitted the 
document and associated analyses on May 3, 2006.
    A Notice of Availability (NOA) for Amendment 1, as submitted by the 
Council for review by the Secretary of Commerce, was published in the 
Federal Register on September 6, 2006 (71 FR 52521). The comment period 
on Amendment 1 ends on November 6, 2006. In addition to the 
implementing measures proposed in this rule, Amendment 1 contains 
changes to the herring overfishing definition that are not reflected in 
the regulations.

Proposed Measures

    NMFS is publishing the Council's proposed regulations for the 
measures in Amendment 1, with one exception. Amendment 1 included a 
measure that would have allowed the harvest of herring by fixed gear 
fishermen in Downeast Maine (East of Cutler, Maine-the Downeast Maine 
Fixed Gear Fishery) to be exempt from the TACs that govern the fishery. 
Catch from the Downeast Maine fixed gear fishery (weirs and stop seines 
East of Cutler) would be included as part of the assumed catch from the 
New Brunswick (NB) weir fishery when determining area-specific TACs and 
herring fishery specifications (currently 44 million lb (20,000 mt)). 
During the fishing season, catch from the Downeast Maine Fixed Gear 
Fishery would not be counted against the TAC for Area 1A, and the fixed 
gear fishery would be allowed to continue to operate once the Area 1A 
TAC has been reached. This measure would apply to fixed gear (stop 
seine and weir) catches in waters north of a line drawn from Spruce 
Point (44[deg] 36.2' N. lat and 67[deg] 16.8' W.long), Cross Island, 
Cutler, Maine, due east magnetic to the international boundary with 
Canada. The Council recognized that fixed gear fishing occurs primarily 
in inshore waters, but extending the exemption line throughout the 
Exclusive Economic Zone (EEZ) was proposed to simplify the 
administration and enforcement of this measure.
    NMFS is not publishing proposed regulations to implement these 
measures because they have been determined, prima facie, to be 
inconsistent with National Standard 1 of the Magnuson-Stevens Act. The 
measures would essentially allow a portion of the fishery to remain 
completely unregulated without corresponding conservation benefits. 
Even though the Council has pointed out that recent catches from the 
fixed gear fishery east of Cutler are virtually non-existent, that does 
not mean that would remain the case. If the fixed-gear landings from 
this area were to increase dramatically, NMFS would have no means of 
regulating that catch to ensure the integrity of the TACs established 
for the fishery. This measure also has been determined to be 
inconsistent with National Standard 3, the requirement to manage an 
individual stock unit throughout its range.

1. Exemption From Vessel Permit Requirements

    This action would continue to allow the following vessels to fish 
for, catch, possess, transport, or land Atlantic herring in or from the 
Exclusive Economic Zone without a Federal permit: A skiff or other 
similar craft used exclusively to deploy the net in a purse seine 
operation conducted by a vessel that is permitted to fish for Atlantic 
herring under the proposed program; and a vessel that possesses herring 
solely for its own use as bait, providing the vessel does not use or 
have on board purse seine, midwater trawl, pelagic gillnet, sink 
gillnet, or bottom trawl gear on any trip in which herring is fished 
for, possessed, or landed, and does not transfer, sell, trade, or 
barter such herring. NMFS has clarified the existing provision for this 
exemption to indicate that such vessels cannot transfer, sell, trade, 
or barter such herring.

2. Limited Access Vesssel Permits

    Amendment 1 would implement two categories of limited access 
permits that would authorize vessels to fish for herring without being 
limited by a possession limit: (1) an All Areas Limited Access Herring 
Permit, which would authorize vessels to fish in all management areas; 
and (2) an Areas 2 and 3 Limited Access Herring Permit, which would 
authorize vessels to fish only in management areas 2 and 3. The limited 
access directed fishery eligibility criteria are intended to qualify 
vessels with significant fishing history and participation in the 
herring fishery. Most of these vessels are currently issued a Category 
1 herring permit that is required of vessels that land, or intend to 
land, > 1.1 million lb (500 mt) of herring annually. These

[[Page 56449]]

vessels land the vast majority of Atlantic herring during each fishing 
year. While vessels that qualify for the limited access directed 
fishery permits would not be restricted by a possession or trip limit 
for herring, they would be subject to the other regulations established 
through the Atlantic Herring FMP. If 95 percent of an area TAC is 
reached in a management area, the directed fishery for herring would be 
closed, and limited access directed fishery permit holders would be 
limited to 2,000 lb (907.2 kg) of herring per trip in that management 
area.
    A vessel would be eligible for either an All Areas Limited Access 
Herring Permit or an Areas 2 and 3 Limited Access Herring Permit if it 
meets one of the two following permit history criteria: The vessel must 
have been issued a Federal herring permit (Category 1 or 2) that was 
valid as of November 10, 2005; or the vessel is replacing a vessel that 
was issued a Federal herring permit (Category 1 or 2) between November 
10, 2003, and November 9, 2005. To qualify as a replacement vessel, the 
replacement vessel and the vessel being replaced must both be owned by 
the same vessel owner; or, if the vessel being replaced was sunk or 
destroyed, the vessel owner must have owned the vessel at the time it 
sand or was destroyed; or, if the vessel being replaced was sold to 
another person, the vessel owner must provide a copy of a written 
agreement between the buyer and the owner/seller documenting that the 
vessel owner/seller retained the herring permit and all herring fishing 
and landings history. This written agreement must be consistent with 
the permit splitting provisions outlined in Section 4.
    To qualify for the All Areas Limited Access Herring Permit, the 
vessel and/or any vessel it replaced must have landed and sold at least 
500 mt of herring in any one calendar year between January 1, 1993, and 
December 31, 2003, as verified by NMFS records or documented through 
dealer receipts. To qualify for an Areas 2 and 3 Limited Access Herring 
Permit, the vessel and/or any vessel it replaced must have landed at 
least 250 mt of herring in any one calendar year between January 1, 
1993 and December 31, 2003, as verified by NMFS records or documented 
through dealer receipts.
    For vessels that meet the limited access permit eligibility 
requirements, but have not been replaced, see section 4, and the 
information about confirmation of permit history (CPH).

3. Limited Access Incidental Catch Herring Permit

    The Council determined that there are a number of vessels that are 
not heavily dependent on herring in terms of a percentage of their 
total catch, but rely on herring as part of an overall harvest 
strategy, and proposes to establish a Limited Access Incidental Catch 
Herring Permit to accommodate such vessels. Many of these vessels have 
an incidental catch of herring while fishing in other small-mesh, high-
volume fisheries for species including Atlantic mackerel, Loligo squid, 
and whiting (silver hake). This measure is intended to provide such 
vessels with an opportunity to land relatively small amounts of herring 
rather than increase the potential for regulatory discarding of herring 
in such fisheries.
    A vessel is eligible for and may be issued either a limited access 
Incidental Catch Herring Permit if it meets one of the two following 
permit history criteria: The vessel must have been issued a Federal 
permit to fish for Atlantic herring, Loligo or Illex squid, mackerel, 
butterfish, and/or whiting (NE multispecies), during the 2005 fishing 
year as of November 10, 2005; or the vessel is replacing a vessel that 
was issued a Federal herring permit (Category 1 or 2) between November 
10, 2003, and November 9, 2005. To qualify as a replacement vessel, the 
replacement vessel and the vessel being replaced must both be owned by 
the same vessel owner; or, if the vessel being replaced was sunk or 
destroyed, the vessel owner must have owned the vessel at the time it 
sank or was destroyed; or, if the vessel being replaced was sold to 
another person, the vessel owner must provide a copy of a written 
agreement between the buyer and the owner/seller documenting that the 
vessel owner/seller retained the herring permit and all herring fishing 
and landings history. This written agreement must be consistent with 
the permit splitting provisions outlined in Section 4.
    To qualify for a limited access incidental catch herring permit, 
the vessel and/or any vessel it replaced must have landed and sold at 
least 33,000 lb (15 mt) of herring in any calendar year between January 
1, 1988, and December 31, 2003, as verified by NMFS records or 
documented through dealer receipts. For vessels that meet the limited 
access permit eligibility requirements, but have not been replaced, see 
section 4, and the information about CPH.
    NMFS requests comments on whether vessels that sank, were destroyed 
or sold in the manner described in the previous paragraph, should be 
required to have been issued a Federal herring permit (Category 1 or 2) 
any time between November 10, 2003, and November 9, 2005. Specifically, 
NMFS would like to know if the Council intended that such a vessel 
should not be allowed to meet the permit requirement if it had been 
issued a Federal permit to fish for Loligo or Illex squid, mackerel, 
butterfish, and/or whiting (NE multispecies), during the 2005 fishing 
year as of November 10, 2005, and have landed at least 33,000 lb (15 
mt) of herring in any calendar year between January 1, 1988, and 
December 31, 2003. If a vessel could qualify for a limited access 
incidental catch permit with a Loligo or Illex squid, mackerel, 
butterfish, and/or whiting (NE multispecies) permit, there appears no 
reason that the requirments should necessarily differ for vessels that 
sank, were destroyed, or were sold.
    Vessels with limited access incidental catch permits would be 
restricted by a possession limit of 55,000 lb (25 mt) of herring and 
limited to one landing of herring per calendar day. If 95 percent of an 
area TAC is reached in a management area, the directed fishery for 
herring would be closed, and limited access incidental catch permit 
holders would be limited to 2,000 lb (907.2 kg) of herring per trip.
    Amendment 1 would allow a vessel to be issued multiple herring 
permits. For instance, a vessel could have landings history sufficient 
to qualify for the Areas 2 and 3 Limited Access Herring Permit, but not 
the All Areas Limited Access Herring Permit. Such a vessel could also 
qualify for a Limited Access Incidental Catch Permit. In this case, the 
vessel could not possess herring in excess of the Limited Access 
Incidental Catch Herring Permit possession limit of 55,000 lb (25 mt) 
if it fishes any part of a trip in Area 1, regardless of whether it 
catches herring from Areas 2 or 3. However, the vessel could catch and 
land herring in excess of 55,000 lb (25 mt) in or from areas 2 and 3, 
provided it stowed its gear while transiting Area 1.

4. Limited Access Vessel Permit Provisions

    Amendment 1 would establish measures to govern future transactions 
related to limited access vessels, such as purchases, sales, or 
reconstruction. These measures would apply to all limited access 
vessels. The provisions proposed in this amendment are consistent with 
those that govern most of the other Northeast region limited access 
fisheries, e.g., there are some differences in the limited access 
program for American lobster.

[[Page 56450]]

Initial Eligibility
    Initial eligibility for a herring limited access permit would have 
to be established during the first year after the implementation of 
Amendment 1. A vessel owner would be required to submit an application 
for a herring limited access permit or CPH within 12 months of the 
effective date of the final regulations.
CPH
    A person who does not currently own a fishing vessel, but who has 
owned a qualifying vessel that has sunk, or been destroyed, or 
transferred to another person, would be required to apply for and 
receive a CPH if the fishing and permit history of such vessel has been 
retained lawfully by the applicant. To be eligible to obtain a CPH, the 
applicant would have to show that the qualifying vessel meets the 
eligibility requirements for the limited access herring permit in 
question, and that all other permit restrictions are satisfied (e.g., 
permit splitting). Issuance of a valid CPH would preserve the 
eligibility of the applicant to apply for a limited access permit for a 
replacement vessel based on the qualifying vessel's fishing and permit 
history at a subsequent time. A CPH would have to be applied for in 
order for the applicant to preserve the limited access eligibility of 
the qualifying vessel. Vessel owners who were issued a CPH could obtain 
a vessel permit for a replacement vessel based upon the previous 
vessel's history that would utilize the CPH consistent with the vessel 
size upgrade restrictions.
    The owner of a qualifying vessel that has sunk, been destroyed, or 
been transferred to another person without the Atlantic herring fishing 
history, but not yet replaced, would be required to apply for a CPH 
within the first year after the implementation of Amendment 1.
Landings History
    Unless NMFS data already demonstrate that a vessel made landings of 
herring that satisfy the eligibility criteria for a limited access 
permit, applicants would have to submit dealer receipts that verify 
landings. Amendment 1 specifies that the owners of pair trawl vessels 
may divide the catch history between the two vessels in the pair 
through third party verification and supplemental information, such as 
vessel trip reports (VTR) or dealer reporting. The two owners must 
apply for a limited access permit jointly and must submit proof that 
they have agreed to the division of landings.
Extension of Qualification Period
    A vessel owner who could prove that a vessel was under 
construction, reconstruction, or was under written contract for 
purchase as of December 31, 2003, and landed the amount of fish 
required by the limited access program as of December 31, 2004, would 
be able to apply for and obtain a limited access permit as long as it 
meets the permit eligibility criteria. This measure would provide such 
vessels with a 1-year extension of the qualification period for the 
landings portion of the eligibility criteria.
Permit Transfers
    An Atlantic herring limited access permit and fishery history would 
be presumed to transfer with a vessel at the time it is bought, sold, 
or otherwise transferred from one owner to another, unless it is 
retained through a written agreement signed by both parties in the 
vessel sale or transfer.
Permit Splitting
    Amendment 1 adopts the permit splitting provision currently in 
effect for other limited access fisheries in the region. Therefore, a 
limited access permit may not be issued to a vessel if the vessel's 
permit or fishing history has been used to qualify another vessel for a 
limited access permit. This means all limited access permits, including 
herring limited access permits, must be transferred as a package when a 
vessel is replaced or sold. Amendment 1 explicitly states that the 
permit-splitting provision is intended to apply to the transfer/sale of 
herring fishing history prior to the implementation of Amendment 1, if 
any limited access permits were issued to the subject vessel. Thus 
vessel owners who sold vessels with limited access permits and retained 
the herring history with the intention of qualifying a different vessel 
for the herring limited access program would not be allowed to do so 
under Amendment 1, unless the limited access permits on the sold vessel 
are permanently relinquished by the owner.
Qualification Restriction
    Consistent with previous limited access programs, no more than one 
vessel would be able to qualify, at any one time, for a limited access 
permit or CPH based on that or another vessel's fishing and permit 
history. If more than one vessel owner claimed eligibility for a 
limited access permit or CPH, based on one vessel's fishing and permit 
history, the Regional Administrator would determine who is entitled to 
qualify for the permit or CPH.
Appeal of Permit Denial
    Amendment 1 specifies an appeals process for applicants who have 
been denied a limited access Atlantic herring permit. Such applicants 
would be able to appeal in writing to the Regional Administrator within 
30 days of the denial, and any such appeal would have to be based on 
the grounds that the information used by the Regional Administrator was 
incorrect.
    The appeals process would allow an opportunity for a hearing before 
a hearing officer designated by the Regional Administrator. The owner 
of a vessel denied a limited access herring permit could fish for 
herring, provided that the denial had been appealed, the appeal was 
pending, and the vessel had on board a letter from the Regional 
Administrator authorizing the vessel to fish under the limited access 
category. The Regional Administrator would issue such a letter for the 
pendency of any appeal. If the appeal was ultimately denied, the 
Regional Administrator would send a notice of final denial to the 
vessel owner; and the authorizing letter would become invalid 5 days 
after receipt of the notice of denial.
Vessel Upgrades
    A vessel could be upgraded in size, whether through refitting or 
replacement, and be eligible to retain or renew a limited access 
permit, only if the upgrade complies with limitations in Amendment 1. 
The vessel's horsepower (HP) could be increased only once, whether 
through refitting or replacement. Such an increase could not exceed 20 
percent of the HP of the vessel's baseline specifications, as 
applicable. The vessel's length, gross registered tonnage (GRT), and 
net tonnage (NT) could be increased only once, whether through 
refitting or replacement. Any increase in any of these three 
specifications of vessel size could not exceed 10 percent of the 
vessel's baseline specifications, as applicable. If any of these three 
specifications is increased, any increase in the other two must be 
performed at the same time. This type of upgrade could be done 
separately from an engine HP upgrade.
    Amendment 1 maintains the existing Herring FMP specification of 
maximum length, size, and HP for vessels engaged in the Atlantic 
herring fishery (165 ft (50.2 meters), 750 GRT (680.3 mt), and 3,000 
HP). In addition, existing regulations that exempt USAP vessels from 
these size limits would be maintained.

[[Page 56451]]

Establishing Vessel Baselines
    A vessel's baseline refers to those specifications (length overall, 
GRT, NT, and HP) from which any future vessel size change is measured. 
The vessel baseline specifications for Atlantic herring vessels issued 
limited access permits would be the specifications of the vessel that 
was initially issued a limited access permit as of the date that the 
initial vessel applied for such a permit. If a vessel owner is 
initially issued a CPH instead of a permit, the vessel that provided 
the CPH eligibility would establish the size baseline against which 
future vessel size limitations would be evaluated.
Vessel Replacements
    The term vessel replacement (vessel replacement), in general, 
refers to replacing an existing limited access vessel with another 
vessel. In addition to addressing increases in vessel size and HP, 
Amendment 1 would establish a restriction that requires that the same 
entity must own both the limited access vessel (or fishing history) 
that is being replaced, and the replacement vessel.
Voluntary Relinquishment of Eligibility
    Amendment 1 includes a provision to allow a vessel owner to 
voluntarily exit a limited access fishery. Such relinquishment would be 
permanent. In some circumstances, it could allow vessel owners to 
choose between different permits with different restrictions without 
being bound by the more restrictive requirement (e.g., lobster permit 
holders may choose to relinquish their other Northeast Region limited 
access permits to avoid being subject to the reporting requirements 
associated with those other permits). If a vessel's limited access 
permit history for the herring fishery is voluntarily relinquished to 
the Regional Administrator, no limited access permit for that fishery 
could ever be reissued or renewed based on that vessel's history.
Permit Renewals and CPH
    Amendment 1 specifies that a vessel owner must maintain the limited 
access permit status for an eligible vessel by renewing the permits on 
an annual basis or applying for issuance of a CPH. A CPH is issued to a 
person who does not currently own a particular fishing vessel, but who 
has legally retained the fishing and permit history of the vessel for 
the purpose of transferring it to a replacement vessel at a future 
date. The CPH provides a benefit to a vessel owner by securing limited 
access eligibility through a registration system when the individual 
does not currently own a vessel.
    A vessel's limited access permit history would be cancelled due to 
the failure to renew, in which case, no limited access permit could 
ever be reissued or renewed based on that vessel's history or to any 
other vessel relying on that vessel's history.
    All limited access permits must be issued on an annual basis by the 
last day of the fishing year for which the permit is required, unless a 
CPH has been issued. A complete application for such permits must be 
received no later than 30 days before the last day of the fishing year.

5. Open Access Vessel Permit and Possession Limit

    Any vessel could be issued an open access incidental catch permit 
that would authorize the possession and landing of up to 6,600 lb (3 
mt) of herring per trip, with a limit of one landing per calendar day. 
When the TAC in a management area is projected to be reached and the 
limited access fishery closes, the possession limit for these vessels 
would be reduced to 2,000 lb (907.2 kg) per trip, with a limit of one 
landing per calendar day, when fishing in the area. Open access vessels 
that land more than 2,000 lb (907.2 kg) of herring in any week would be 
required to report their catches on a weekly basis through the 
Interactive Voice Recording (IVR) reporting program described in 
section 6.
    Amendment 1 requires an Atlantic herring carrier vessel to have an 
Atlantic herring permit, not have any gear on board capable of catching 
or processing herring, and have on board a letter of authorization from 
the Regional Administrator to transport herring caught by another 
fishing vessel. Amendment 1 specified that carrier vessels would not be 
required to qualify for a limited access permit to possess/transport 
herring. NMFS had drafted the regulations to specify that a carrier 
vessel must be issued either an open access or a limited access herring 
permit.

6. Reporting Requirements

    All limited access directed and limited access incidental fishery 
permit holders would be required to report herring catches weekly 
through the IVR call-in system, and to file a negative report if there 
were no catches in a specific week. Amendment 1 would require all 
vessels issued a limited access directed fishery or limited access 
incidental catch permit (with the exception of fixed gear fishermen) to 
install and maintain operable Vessel Monitoring System (VMS) units, and 
to comply with all VMS notification and reporting requirements. Such 
vessels may power down the VMS unit when in port, but must re-power the 
VMS unit and enter an appropriate trip designation prior to leaving 
port.

7. Adjustments to Management Area Boundaries

    Herring management measures, including TACs, are specified for four 
management areas (Areas 1A, 1B, 2, and 3). Amendment 1 would revise the 
area boundaries consistent with recommendations from the Transboundary 
Resource Assessment Committee (TRAC), a group comprised of both U.S. 
and Canadian scientists. The boundary between Areas 1B and 3 would be 
revised to assure that fish caught in Franklin Swell are attributed to 
the GB spawning component of the stock. The Area 2/3 boundary would be 
moved west from 69[deg]00' W. long. to 70'00' W. long. to better relate 
catch to the TRAC conclusion that there are two spawning components of 
the stock: The GOM and GB/Nantucket Shoals components.

8. Maximum Sustainable Yield

    In February 2003, during the development of Amendment 1, the TRAC 
met to try to come to consensus regarding the status of the stock and 
the most appropriate values for biological reference points. The two 
herring assessments presented at the TRAC Meeting produced different 
results, and no overall consensus was reached regarding which 
assessment is most accurate. Consequently, no specific biological 
reference points were provided by the joint peer review group. In the 
face of this scientific uncertainty, the Council decided that it was 
appropriate to set a relatively conservative proxy for MSY in Amendment 
1, until a stock assessment could be completed that specified an 
analytical MSY value. Based on input from the Council's Scientific and 
Statistical Committee (SSC), the Council revised the reference points 
in the overfishing definition for Atlantic herring as follows: MSY = 
220,000 mt; B<INF>MSY</INF> (B<INF>Target</INF>) = 1,100,000 mt; and 
B<INF>threshold</INF> = 550,000 mt. The reference points in the 
Atlantic Herring FMP were: MSY = 317,000 mt; BMSY (BTarget) = 1,100,000 
mt; and B<INF>threshold</INF> = 550,000 mt (the B<INF>threshold</INF> 
established in the FMP is 1/2 B<INF>MSY</INF>).
    The Amendment 1 document explains that the proposed proxy reference 
points would be revised if a new, peer-reviewed stock assessment 
recommends different reference points. In May 2006, the TRAC reconvened 
and completed another herring assessment. The TRAC

[[Page 56452]]

recommended the following reference points: MSY = 194,000 mt, and Bmsy 
= 629,000 mt. Based on this and the FMP's guidance, B<INF>Target</INF> 
would be 629,000 mt, and B<INF>threshold</INF> would be 314,500 mt (1/2 
B<INF>MSY</INF>). If approved in Amendment 1, these values would become 
the new reference points for the Atlantic herring fishery.

9. Specification of Management Measures Including TACs.

    The Amendment 1 management program includes the specification of 
management measures for 3-year periods. This measure would maintain 
flexibility for the Council to adjust the fishery specifications in the 
interim years. If the Council determines that the specifications should 
be adjusted during the 3-year time period, it could do so during one or 
both of the interim years. No action would be required by the Council 
to maintain the same specifications for all 3 fishing years; Council 
action would only be required if adjustments to the specifications 
during the interim years were to be made.
    Amendment 1 outlines the process for establishing the 
specifications. The Herring Plan Development Team (PDT), which advises 
the Council on technical matters pertaining to herring management, 
would meet with the Atlantic States Marine Fisheries Commissions' 
(Commission's) Technical Committee (TC) to review the status of the 
stock and the fishery and prepare a Stock Assessment and Fishery 
Evaluation (SAFE) report every 3 years. While a SAFE report would only 
be prepared every three years, the Herring PDT would meet at least once 
during interim years to review the status of the stock relative to the 
overfishing definition, if information is available to do so. When 
conducting a 3-year review and preparing a triennial SAFE Report, the 
PDT/TC would report to the Council/Commission and recommend any 
necessary adjustments to the specifications for the upcoming 3 years. 
Specifications and TACs would be conveyed to NMFS once approved by the 
Council and published for public comment. If determined to be 
consistent with the FMP, final specifications would be implemented.
    Amendment 1 would authorize the Herring PDT, in consultation with 
the Herring Committee, Advisory Panel, and other interested parties, to 
utilize the most appropriate analytical approach for determining the 
area-specific TACs during the fishery specification process, provided 
the PDT justifies its approach. The most appropriate analytical 
approach may be the current approach described in the FMP, the risk 
assessment approach, or another approach developed by the PDT based on 
the best available scientific information. This measure allows the 
Council to fully utilize the best scientific information and 
methodology available when specifications for the herring fishery are 
developed.
    Amendment 1 specifies that the seasonal allocation of the Area 1A 
TAC may be reviewed and revised, if necessary, through the 
specification process. The Area 1A TAC is currently allocated to two 
periods: January-May and June-December. Amendment 1would authorize the 
Council to revise the seasonal allocation, as well as to specify the 
TAC allocation for each seasonal period.

10. TAC Set-Asides to Support Herring-Related Research

    Amendment 1 would authorize the Council, in consultation with the 
Commission, to set aside 0-3 percent of the TAC from any management 
area(s) as a research set aside (RSA) to support herring-related 
research. The RSA would be used to support herring-related research in 
any management area(s), consistent with the research priorities 
identified by the Council. Projects funded under an RSA allocation 
would have to enhance understanding of the fishery resource and/or 
contribute to the body of information upon which management decisions 
are made.
    The Council would determine the specific percentages for the RSA 
and the management area(s) to which it is applied during the fishery 
specification process. Amendment 1 specifies that the directed herring 
fishery would close in a particular management area when it was 
projected that 95 percent of the area TAC would be caught. The 
remaining 5 percent of the TAC would be set aside for catch under a 
2,000-lb (907.2 kg) trip limit. The RSA would come out of the 
allocation for the directed fishery. For example, if the Council set 
aside 3 percent of the Area 1A TAC to support research, then the Area 
1A directed fishery would close when 92 percent of the overall Area TAC 
was projected to be reached.
    The RSA would be administered through a process similar to that 
specified by the Mid-Atlantic Fishery Management Council in several of 
its fishery management plans. That mechanism would include the 
following elements: Individual research projects may apply for the use 
of more than one herring research set-aside allocation; researchers may 
request that the set-aside be collected separately from the research 
trip or as part of the research trip; and research compensation trips 
would not all necessarily have to be conducted by the same vessel, but 
would have to be conducted in the management area from which the set-
aside was derived.
    Multi-year projects could be funded, since the RSA process is 
intended to be consistent with the Council's proposed 3-year 
specification process. The RSA would have to be utilized in the same 
fishing year in which it was allocated (i.e., RSA and compensation 
trips could not be rolled over into future years). However, the money 
generated from the RSA may be rolled over into, or used to fund 
research in future years, consistent with the multi-year proposal.
    Specification of RSA amounts (percentages) for the upcoming fishing 
years would be incorporated into the Council's fishery specification 
package every 3 years, and submitted to NMFS with additional analysis 
required, as part of the specification package. For each proposal 
cycle, NMFS would publish a Request for Proposals (RFP) that specifies 
research priorities identified by the Council and application 
procedures for funding through the RSA. Since specifications would be 
set for three fishing years, the proposal cycle would also cover 3 
fishing years, unless the Council identifies new/different research 
priorities during the interim years and decides to publish a second 
RFP.
    Research proposals, whenever possible, would be reviewed and 
approved prior to the publication of final quota specifications for the 
upcoming fishing years. In the event that the approved proposals did 
not make use of any or all of the set-asides, NMFS would be authorized 
to release the unutilized portion of the RSA back to its respective 
management area(s) when the final specifications were published. If 
there were unutilized RSA available, NMFS, at the request of the 
Council, could publish another RFP for either the second or third years 
of the three-year specifications. In such case, NMFS would release the 
unutilized portion of the set-aside back to its respective management 
area(s) for the first year of the specifications and any other year 
that yields unutilized RSA after an additional RFP is published. The 
Council also may decide not to publish another RFP, in which case NMFS 
would be authorized to release the unutilized portion of the RSA back 
to its respective management area(s) for all 3 fishing years covered by 
the specifications.

[[Page 56453]]

First Round Following Amendment 1 (2007-2009 Fishery Specifications)
    Under the existing FMP, the Council must develop specifications for 
the 2007 Atlantic herring fishery during the summer/fall 2006. In 
anticipation of Amendment 1 implementation, the specifications will 
also specify multi-year specifications for the 2007-2009 fishing years. 
The timing of both the completion of this amendment and the fishery 
specification process precludes the Council from making a RSA available 
for the 2007 fishing year. However, the Council recommendations for 
2007-2009 may include RSAs for the 2008 and 2009 fishing years. If this 
is the case, the Council would identify research priorities, NMFS would 
publish the RFP, and proposals would be reviewed and approved during 
the 2007 fishing year so that funds could be made available for 
projects at the start of the 2008 fishing year.

11. Purse Seine/Fixed Gear Only Area

    Amendment 1 proposes to prohibit vessels using single or paired 
midwater trawls from fishing for Atlantic herring in Area 1A from June 
1 September 30 of each year. There would be no restrictions on the use 
of midwater trawl gear in Area 1A from October 1 May 31.
    Amendment 1 notes that the Council adopted this measure in response 
to significant and growing concern about the status of the inshore 
component of the herring resource, and the potential impacts of 
midwater trawl fishing effort, which can be highly concentrated at 
times, in the inshore GOM. These concerns relate primarily to the 
importance of herring as a forage species for other fish, marine 
mammals, and seabirds, and the impact that midwater trawl fishing 
effort may be having on localized schools of herring in nearshore 
areas.
    Amendment 1 concluded that data suggest that there may be 
differences in bycatch rates, the species composition of bycatch, and 
bycatch mortality between purse seine and midwater trawl gear. It noted 
that restricting midwater trawl gear in Area 1A during the summer 
months may reduce bycatch and indirectly benefit other recovering 
stocks in the inshore GOM (groundfish stocks, for example). In 
addition, the Council noted that some purse seiners suggest that 
midwater gear disperses herring schools, making it difficult to use 
purse seines. Fixed gear participants argue that midwater gear keeps 
herring schools from coming inshore, limiting fishing opportunities for 
this gear type. The amendment noted that gear conflict stemming from 
any localized impact or perceived impact of midwater trawling on 
herring also may be resolved by this measure.

12. Measures to Address Fixed Gear Fisheries

    Amendment 1 would set aside 500 mt of the Area 1A TAC for the fixed 
gear fisheries in Area 1A (weirs and stop seines) that occur west of 
Cutler, Maine. This set-aside would be available for harvest using 
fixed gear west of Cutler in Area 1A until November 1 each year. If the 
set-aside were not utilized by the fixed gear fisheries west of Cutler 
in Area 1A by November 1, then it would become part of the overall 
allocation for Area 1A. If 95 percent of the Area 1A TAC has already 
been reached by November 1 (and the directed fishery in 1A is therefore 
closed), the reallocation of the set-aside would not result in re-
opening the directed fishery, but would be available for landings under 
the 2,000-lb (907.2-kg) possession limit.
    This measure would require real-time monitoring of fixed gear 
catches in Area 1A. To ensure that this set-aside is effectively 
monitored and enforced, fixed gear fishermen in Area 1A would be 
required to report their herring catches through the IVR reporting 
system. Because fixed gear fishermen fish exclusively in state waters 
and are not required to obtain a Federal limited access permit, this 
IVR reporting requirement has been implemented in state waters by the 
Commission in Amendment 2 to the Interstate FMP for Atlantic Herring, 
and proposed regulations relating to this measure are not included in 
this proposed rule.

13. Measures to Address Bycatch

    As noted above, measures to address bycatch in the herring fishery 
were developed in conjunction with Amendment 1, but submitted 
separately as Framework 43. Framework 43's regulatory requirements 
apply to Category 1 herring vessels. These proposed regulations would 
eliminate the Category 1 vessel permit designation, and implement a 
limited access program. Therefore, this action proposes changes to the 
regulations that make it clear that the measures established in 
Framework 43 would apply to all limited access herring vessels.

14. Regulatory Definition of Midwater Trawl Gear

    This action would modify the regulatory definition of midwater 
trawl gear to reflect the recommendations made by the Council's 
Enforcement Committee to improve the enforceability of the definition 
and clarify the public's understanding of how the gear should be 
fished. The restrictions included in the proposed definition would 
better ensure that the gear cannot be fished on the ocean bottom. This 
measure would improve enforcement because it would provide specific 
references that enforcement agents can use to ensure that the gear is 
being fished properly (as opposed to the current definition, which 
simply states that the gear is designed to fish for, is capable of 
fishing for, or is being used to fish for pelagic species, no portion 
of which is designed to be or is operated in contact with the bottom at 
any time).

15. Framework Measures

    Amendment 1 would maintain the framework adjustment process in the 
FMP. This action would add the following measures to the list of 
measures that could be implemented through a framework adjustment to 
the FMP in the future.
    In-Season Adjustments to TACs: Amendment 1 would clarify that in-
season adjustments to management area TACs could be enacted by the 
Council and NMFS through a framework adjustment.
    Measures to Address Bycatch and Bycatch Monitoring: Amendment 1 
proposes that any management measures to address bycatch and bycatch 
monitoring in the herring fishery could be implemented through a 
framework adjustment to the FMP, as well as through the herring fishery 
specification process.
    TAC Set-Aside Amounts, Provisions, Adjustments: The Council could 
adjust TAC set-asides established in Amendment 1 through a framework 
adjustment, including the amounts and provisions related to RSA and the 
500-mt set-aside for fixed gear fisheries occurring west of Cutler in 
Area 1A.

Classification

    At this time, NMFS has not made a final determination that the FMP/
amendment that this proposed rule would implement is consistent with 
the national standards of the Magnuson-Stevens Act and other applicable 
laws. NMFS, in making that determination, will take into account the 
data, views, and comments received during the comment period.
    The Council prepared and NMFS has adopted a draft FSEIS for 
Amendment 1; a notice of availability was published on April 14, 2003 
(68 FR 17903). The draft FSEIS describes the impacts of the proposed 
management program in detail. The overall conclusion is that the direct 
biological impacts of the management action on the Atlantic

[[Page 56454]]

herring resource will be beneficial in the long term, but are not 
likely to be significant. The proposed measures would maintain the 
existing procedures for establishing the allowed level of annual 
removals from the resource, and the process would incorporate updated 
scientific information as it becomes available.
    Because herring is a primary prey species for seals, porpoises and 
some whales, protected species interactions with this fishery are 
likely. The proposed measures, however, include a limited access 
program that would control capitalization of the fleet, including 
growth of the midwater trawl sector, and a seasonal purse seine/fixed 
gear only area that should, at a minimum, not increase interactions 
with protected species beyond the status quo, and may have indirect 
positive benefits by imposing more controls on the fishery.
    The proposed management measures that would be most likely to 
directly impact fishery-related businesses and communities are the 
proposed limited access program and the PS/FG. Both of these measures 
may affect access to the herring fishery for some vessel owners, and 
could have some socioeconomic impacts. These impacts are further 
described below in the IRFA summary.
    Amendment 1 concludes that additional measures to minimize, 
mitigate or avoid impacts on Essential Fish Habitat (EFH) were not 
necessary, warranted, or practicable as the result of the proposed 
action.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    This proposed rule contains new collection-of-information 
requirements subject to review and approval by the Office of Management 
and Budget (OMB) under the Paperwork Reduction Act (PRA). This 
requirement has been submitted to OMB for approval under OMB Control 
No. 0648-0202. Under the proposed limited access program, vessel owners 
would be required to submit to NMFS application materials to 
demonstrate their eligibility for a limited access permit. The proposed 
rule also modifies three existing reporting and recordkeeping 
reporting, recordkeeping, or other compliance requirements: (1) The VMS 
requirement for vessels fishing under limited access permits; (2) IVR 
reporting requirements for vessels fishing under the limited access 
permits; and (3) application materials for the RSA program. These 
requirements do not change the reporting burden for respondents, and 
simply modify existing collections approved by OMB under the Northeast 
Region Permit Family of Forms (OMB Control No. 0648-0202).
    The public reporting burden for the new requirements pertaining to 
the limited access program is estimated to average 0.75 hr per 
application, including the time for reviewing instructions, searching 
existing data sources, gathering and maintaining the data needed, and 
completing and reviewing the collection information.
    Public comment is sought regarding: Whether this proposed 
collection of information is necessary for the proper performance of 
the functions of the agency, including whether the information shall 
have practical utility; the accuracy of the burden estimate; ways to 
enhance the quality, utility, and clarity of the information to be 
collected; and ways to minimize the burden of the collection of 
information, including through the use of automated collection 
techniques or other forms of information technology. Send comments on 
these or any other aspects of the collection of information to the 
Regional Administrator (see ADDRESSES), and email to <a href="/cdn-cgi/l/email-protection#783c190e111c272a170b0c131d0a3817151a561d1708561f170e"><span class="__cf_email__" data-cfemail="682c091e010c373a071b1c030d1a2807050a460d0718460f071e">[email protected]</span></a> or fax to (202) 395-7285.
    Notwithstanding any other provision of the law, no person is 
required to respond to, and no person shall be subject to penalty for 
failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB control number.
    An IRFA was prepared, as required by section 603 of the Regulatory 
Flexibility Act (RFA). The IRFA describes the economic impact this 
proposed rule, if adopted, would have on small entities. A description 
of the action, why it is being considered, and the legal basis for this 
action are contained at the beginning of this section in the preamble 
and in the SUMMARY section of the preamble and in Amendment 1. A copy 
of the IRFA can be obtained from the Council or NMFS (see ADDRESSES) or 
via the Internet at http://www.nero.noaa.gov. A summary of the analysis 
follows:

Description and Estimate of Number of Small Entities to Which the Rule 
Will Apply

    During the 2004 fishing year, 86 vessels landed herring, 40 of 
which averaged more than 2,000 lb (907.2 kg) of herring per trip. There 
are no large entities, as defined in section 601 of the RFA, 
participating in this fishery. Therefore, there are no disproportionate 
economic impacts between large and small entities.

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

Reporting Requirements

    It is estimated that there will be 200 applicants for a limited 
access herring permit with an average processing time of 45 minutes per 
application for a total burden of 150 hours. Only 90 are expected to 
qualify and consequently renew their application each year. The renewal 
application is estimated to take 30 minutes on average to process for a 
total burden of 45 hours. Up to 10 applicants are expected to appeal 
the denial of their permit application. The appeals process is 
estimated to take 2 hours to complete, on average, with a total burden 
of 20 hours. The 3 year average total public cost burden for permit 
applications, appeals and renewals, at an hourly rate of $15, is 
$1,200.
    New limited access herring vessels would be subject to the same 
replacement, upgrade, and permit history restrictions as other limited 
access vessels. Completion of a replacement or upgrade application 
requires an estimated 3 hours per response. It is estimated that no 
more than 20 of the 90 vessels possessing these limited access permits 
will request a vessel replacement or upgrade annually. This resultant 
burden would be up to 60 hours. Completion of a confirmation of permit 
history (CPH) application requires an estimated 30 minutes per 
response. It is estimated that no more than 10 of the 90 vessels 
possessing a limited access permit will request a CPH annually. The 
resultant burden would be up to 5 hours. At an hourly rate of $15/hour, 
the total public cost burden for replacement/upgrade and CPH 
applications is $975.

Other Compliance Requirements

    The proposed PS/FG area could impose compliance costs on the owners 
of vessels that currently use midwater trawl gear. Some vessel owners 
may decide that it is essential to their fishing operation to continue 
to operate within Area 1A during the June-September period, and in such 
cases these vessel owners would need to re-rig their vessels to use 
purse seine gear. The costs of re-rigging are estimated in Amendment 1 
to range from $300,000 to $500,000, per vessel.

Economic Impacts of the Proposed Action Compared to Significant Non-
selected Alternatives

    The Proposed Action management measures that are most likely to 
directly impact fishery-related businesses and

[[Page 56455]]

communities are the proposed limited access program, the PS/FG area, 
the open access incidental catch permit, and the vessel size upgrade 
restrictions.

Limited Access Program

    The FSEIS estimates the numbers of vessels that would qualify for 
limited access permits under the different alternatives. There were six 
alternatives in addition to the proposed action and Alternative 1 (No 
Action). The alternatives distinguish between limited access directed 
fishery permits, that have no associated possession restrictions, and 
limited access incidental catch permits, that would have associated 
limits on the amount of herring that could be possessed. A combination 
of dealer and logbook data were used to estimate how many vessels would 
qualify under each of the proposed limited access alternatives. The 
FSEIS developed estimates for all the alternatives of the number of 
qualifying vessels, as well as the number of active vessels that would 
qualify. Active vessels were defined as those vessels that averaged 
more than 1 mt of herring per trip from 2002-2004. The analysis of 
active qualifiers was conducted presuming that these vessels would be 
most likely to participate in the fishery after the establishment of a 
limited access program. The FSEIS noted that the estimates of 
qualifying vessels are minimum estimates, as vessel owners may produce 
additional records demonstrating eligibility during the application 
process.
    Under the Proposed Action, 31 vessels (28 active) would qualify for 
limited access directed fishery permits to fish in all management 
areas, and 3 additional vessels (1 active) would qualify for limited 
access directed fishery permits to fish in Areas 2/3 only, resulting in 
34 vessels qualified for directed fishery permits. Another 56 vessels 
would qualify for limited access incidental catch permits with a 25-mt 
possession limit, resulting in a total of 90 vessels qualifying for 
various types of limited access permits.
    Under Alternative 2, 36 vessels (31 active) would qualify for 
limited access directed fishery permits to fish in all management 
areas, and 10 additional vessels (4 active) would qualify for limited 
access directed fishery permits to fish in Areas 2/3 only, resulting in 
46 (35 active) vessels qualified for directed fishery permits. Another 
37 vessels (1 active) would qualify for limited access incidental catch 
permits.
    The eligibility criteria for the limited access directed fishery 
permit for all management areas in Alternative 2 would have required a 
vessel to currently possess a herring permit and have landed at least 
500 mt of herring in any one calendar year between January 1, 1993, and 
December 31, 2003. To qualify for a limited access directed fishery 
permit for Areas 2/3, a vessel would have been required to currently 
possess a herring permit and meet one of the following two criteria: 
(1) Landings of 100 mt of herring in any consecutive 12 months between 
September 16, 1993, and September 15, 1999; or (2) landings of 250 mt 
of herring in any consecutive 12 months between September 16, 1999, and 
September 15, 2001. To qualify for a limited access incidental catch 
permit (possession limit of 55,000 lb or 25 mt), the vessel would have 
been required to currently possess a permit for squid, mackerel, 
butterfish, and/or whiting and have landed at least 55,000 lb (25 mt) 
of herring in any calendar year between January 1, 1988, and December 
31, 2002.
    Under Alternative 3, 57 vessels (38 active) would qualify for 
limited access directed fishery permits to fish in all management 
areas. There were no additional vessels that would qualify for the 
limited access directed fishery permit to fish in Areas 2/3 only. 
Another 3 vessels (none active) would qualify for the limited access 
incidental catch permit (possession limit of 55,000 lb or 25 mt).
    The eligibility criteria for the limited access directed fishery 
permit for all management areas in Alternative 3 would have required a 
vessel to currently possess a herring permit and have landed at least 
100 mt of herring in any one calendar year between January 1, 1988, and 
December 31, 2003. For Areas 2/3, a moratorium on the issuance of 
vessel permits would have been established on the date Amendment 1 
measures were implemented. Under the moratorium, a vessel would have 
been deemed eligible for a directed fishery permit for Area 2/3 if it 
possessed a herring permit (Category 1 or 2) on or before September 18, 
2003, and had landed at least 1 pound of fish in any New England or 
Mid-Atlantic fishery prior to September 18, 2003. Alternative 3 would 
have established a controlled access program for Area 2/3 that would be 
implemented when landings reached 75 percent of the TAC specified for 
either of the management areas. Once that trigger was reached, a more 
restrictive limited access program would be implemented at the start of 
the next fishing year that would require a vessel to currently possess 
a herring permit and have landed at least 250 mt of herring in any one 
calendar year between January 1, 1988, and December 31, 2003. To 
qualify for a limited access incidental catch permit (possession limit 
of 55,000 lb or 25 mt), the vessel would have been required to 
currently possess a permit to fish for squid, mackerel, butterfish, 
and/or whiting and have landed at least 100 mt of herring between 
January 1, 1988, and December 31, 2002.
     Under Alternative 4, 38 vessels (31 active) would qualify for 
limited access directed fishery permits to fish in all management 
areas, and 7 additional vessels (2 active) would qualify for limited 
access directed fishery permits to fish in Areas 2/3 only (after the 
trigger was reached). Another 14 vessels (4 active) would qualify for 
limited access incidental catch permits.
    The eligibility criteria for the limited access directed fishery 
permit for all areas in Alternative 4 would have required that a vessel 
to currently possess a herring permit and have landed at least 500 mt 
of herring in any one calendar year between January 1, 1988, and 
December 31, 2003. Areas 2/3 would be subject to the same moratorium on 
permits and subsequent controlled access program as outlined in 
Alternative 3. The incidental catch permit requirements and limits 
under this alternative are also identical to those under Alternative 3.
     Under Alternative 5, 29 vessels (25 active) would qualify for 
limited access directed fishery permits to fish in all management 
areas, and 13 (6 active) additional vessels would qualify for limited 
access directed fishery permits to ish in Areas 2/3 only. Another 38 
vessels (11 active) would qualify for limited access incidental catch 
permits.
    The eligibility criteria for the limited access directed fishery 
permit for all management areas in Alternative 5 would have required 
that a vessel must currently possess a herring permit and meet one of 
the following two criteria: (1) Demonstrated landings of 500 mt of 
herring in any consecutive 12 months between September 16, 1993, and 
September 15, 1999; or (2) demonstrated landings of 500 mt of herring 
in any consecutive 12 months between September 16, 1999, and September 
15, 2001. To qualify for a limited access directed fishery permit for 
Areas 2/3, a vessel would have been required to currently possess a 
herring permit and meet one of the following two criteria: (1) 
Demonstrated landings of 100 mt of herring in any consecutive 12 months 
between September 16, 1993, and September 15, 1999; or (2) demonstrated 
landings of 250 mt of herring in any consecutive 12 months between 
September 16, 1999, and September 15, 2001. This alternative would 
establish an additional Area 1A Historic Inshore

[[Page 56456]]

Priority Permit for vessels that met one of the following two criteria: 
(1) Possession of a limited access directed fishery permit, and 
demonstrated landings of at least 4,000 mt of herring from Area 1A in 
any consecutive 12 months between September 16, 1993, and September 15, 
1999; or (2) possession of a limited access directed fishery permit, 
and demonstrated landings of at least 2,000 mt of herring from Area 1A 
in any consecutive 12 months between September 16, 1999, and December 
31, 2001. When 50 percent of the Area 1A TAC was projected to have been 
caught in any fishing year, access to Area 1A would have been limited 
to vessels that possess an Historic Inshore Priority Permit for the 
remainder of the fishing year (or until the remainder of the Area 1A 
TAC is caught). The incidental catch permit requirements and limits 
under this alternative are identical to those under Alternative 2.
    Under Alternative 6, 32 vessels (21 active) would qualify for 
limited access directed fishery permits to fish in all management 
areas, and 13 additional vessels (12 active) would qualify for limited 
access directed fishery permits to fish in Areas 2/3 only. Another 39 
vessels (12 active) would qualify for limited access incidental catch 
permits (possession limit of 55,000 lb or 25 mt).
    The eligibility criteria for the limited access directed fishery 
permit for all management areas in Alternative 6 would have required a 
vessel to currently possess a herring permit and have landed at least 
250 mt of herring in any one calendar year between January 1, 1988, and 
September 16, 1999. To qualify for a limited access directed fishery 
permit for Areas 2/3, a vessel would have been required to currently 
possess a herring permit and have landed at least 250 mt of herring in 
any one calendar year between January 1, 1988, and December 31, 2003. 
The incidental catch permit requirements are identical to those 
specified under Alternative 3.
     Under Alternative 7, 23 vessels (18 active) would qualify for 
limited access directed fishery permits to fish in all management 
areas, and 22 additional vessels (15 active) would qualify for limited 
access directed fishery permits to fish in Areas 2/3 only. Another 37 
vessels (13 active) would qualify for limited access incidental catch 
permits (possession limit of 33,000 lb or 15 mt).
    The eligibility criteria for the limited access directed fishery 
permit for all management areas in Alternative 7 would have required a 
vessel to currently possess a herring permit and have landed at least 
500 mt of herring in any one calendar year between January 1, 1988, and 
September 16, 1999. To qualify for a limited access directed fishery 
permit for Areas 2/3, a vessel would have been required to currently 
possess a herring permit and have landed at least 250 mt of herring in 
any one calendar year between January 1, 1988, and December 31, 2003. 
To qualify for a limited access incidental catch permit, the vessel 
would have been required to currently possess a permit to fish for 
squid, mackerel, butterfish, and/or whiting and have landed at least 15 
mt (33,000 lb) of herring in any calendar year between January 1, 1993, 
and December 31, 2002.
    The FSEIS analyzed active qualifiers and used two measures to 
estimate how much herring those qualifiers might land in the future 
under the various management alternatives. The first measure multiplies 
a vessel's highest number of days-at-sea per year observed from 2002 
through 2004 by their average metric tons landed per day-at-sea over 
the same time period. The sum of the products are reported to provide a 
first level estimation of what the group of vessels that qualify under 
a given alternative are likely to land. The second measure is similar 
to the first except that days-at-sea are multiplied by the highest 
yearly average metric tons per day-at-sea observed over the 2002 to 
2004 time period. The sum of these vessel-level products represents a 
second-level estimation of potential catch by alternative. This second 
measure provides an estimate of potential landings under the assumption 
that vessels produce at their highest average catch rates and at their 
highest level of effort observed in recent years. These two potential 
catch measures are used to evaluate future profits under the various 
alternatives.
    One way to consider the economic impacts of the alternatives is to 
see how those alternatives might affect landings, because landings 
potentially relate to profits, depending on the the TACs that are 
established. For 28 active vessels that qualify for all areas under the 
proposed alternative, the potential catch of the limited access fleet 
ranges from 161,030 to 198,710 mt. The additional active vessel that 
qualifies for Area 2/3 increases the potential catch slightly, though 
the specific amount of the increase cannot be provided in the document 
due to data confidentiality restrictions.
    The Proposed Action ranks in the middle of the alternatives 
relative to the potential catch in Area 1A. Four alternatives (no 
action and Alternatives 2, 3, and 4) would result in higher potential 
catch, and three alternatives (Alternatives 5, 6, and 7) would result 
in lower potential catch from the area. When the catch from all of the 
management areas is evaluated, there are six alternatives (no action, 
and Alternatives 2, 3, 4, 6, and 7) that result in potential catch 
higher than the Proposed Action. The highest potential catch is 
associated with the no-action alternative, at 170,087 to 209,368 mt. 
Alternative 5 has a lower potential catch than the Proposed Action.
    In terms of number of vessels, the Proposed Action qualifies the 
fewest vessels into the limited access directed fishery (34 vessels). 
This result differs for the two types of limited access directed 
fishery permits. Four alternatives would qualify more vessels than the 
Proposed Action to fish in any of the management areas, while two would 
qualify fewer vessels. The fact that the Proposed Action is the most 
restrictive in terms of the total number of vessels that qualify for 
the directed fishery is due to the nature of the Area 2/3 qualification 
criteria. The Area 2/3 criteria specified in the Proposed Action are 
the most restrictive of the alternatives considered due to the 
selection of 1993 as a start date for the qualification period (versus 
1988). Only three additional vessels would qualify for limited access 
directed fishery permits in Areas 2/3.
    The majority of vessels that would not qualify for a limited access 
permit under the Proposed Action have not been active in the herring 
fishery in recent years, and in some cases, for many years. Some have 
switched to other fisheries, including those targeting Atlantic 
mackerel and squid. The limited access incidental catch permit would 
likely accommodate the catch of herring on these vessels and allow them 
to continue normal operations in other fisheries. This should help to 
mitigate the impacts of not qualifying for a directed fishery permit in 
Areas 2/3. The Proposed Alternative is the least restrictive 
alternative for the limited access incidental catch permit that was 
considered in this amendment.

Purse Seine/Fixed Gear Only

    The impact of this measure was evaluated by considering how many of 
the vessels that would qualify for the limited access directed fishery 
permit to fish in all management areas utilize midwater trawl gear. The 
analysis showed that a total of 22 vessels used midwater trawl gear (6 
used single trawls and 16 used pair trawls) and would be affected by 
the measure that would establish Area 1A from June through September as 
a PS/FG area. Amendment 1 noted that landings data

[[Page 56457]]

show that 4 of the midwater trawl vessels and 13 of the pair trawl 
vessels actively fished in Area 1A during the June through September 
period. To compensate for potential losses from not being able to fish 
in the PS/FG area, the excluded vessels could fish in other management 
areas or be re-rigged to utilize purse seine gear in Area 1A during the 
time of the restriction.
    Four of the alternatives, in addition to the proposed action, 
included a measure to establish a PS/FG area. Under alternatives 3, 4, 
and 6, vessels using single and paired midwater trawls would have been 
prohibited from fishing for Atlantic herring in Area 1A east of 69[deg] 
W. long. from June 1 - September 30 of each fishing year. Under the 
Proposed Action and Alternative 7, the purse seine/fixed gear only area 
would be for all of Area 1A, from June 1 - September 30 of each fishing 
year.
    In terms of numbers of vessels, Alternative 3 would result in the 
greatest number of vessels excluded from the respective gear restricted 
area. However, while the Proposed Action and Alternative 7 impact fewer 
vessels, the impacts of the PS/FG measure are the highest in these 
alternatives because the gear restricted area is much larger for these 
alternatives (all of Area 1A versus 1A east of 69[deg] W. long). This 
means that a greater share of the midwater trawl vessels' landings from 
Area 1A could be lost. This impact is especially important during the 
summer months, when demand for herring to be used as lobster bait is at 
its peak.
    Of all the alternatives, the gear restriction in the Proposed 
Action would likely result in the greatest economic loss when the 
impacts of this measure is considered independent of the other measures 
and other alternatives in the document. This is the case even though 
Alternative 7 includes the identical management measure. The reason for 
this is that more midwater trawl vessels qualify for limited access 
directed fishery permits in Area 1 under the Proposed Action than under 
Alternative 7, and consequently, more vessels may incur losses due to 
the gear restricted area. However, when compared to Alternative 7 and 
considered in the context of the limited access program, the overall 
impacts of this measure are mitigated to some extent. There are 
midwater trawl vessels that qualify for limited access under the 
Proposed Action that would be negatively impacted by the gear 
restriction. However, under Alternative 7 they would be restricted 
entirely from Area 1A because they would not qualify under the limited 
access program, resulting in a comparatively greater negative impact. 
These vessels are less impacted by the Proposed Action even though it 
appears that the impacts from the gear restricted area are greater. 
This is because they can fish in Area 1 from October to May under the 
Proposed Action when they would not have qualified at all for the 
directed fishery in Area 1 under other alternatives (Alternative 7, for 
example).
    During 2002 through 2004, the affected midwater trawl vessels 
landed an average of 12 million lb of herring (5,472 mt, worth about 
$892,000), and the pair trawl vessels landed 47 million lb of herring 
(21,298 mt, worth about $3,472,000) per season (June through September) 
from Area 1A. These landings represent 68 percent and 60 percent of the 
total Area 1A landings by these single and paired midwater trawl 
vessels, respectively. The midwater trawl vessel landings ranged from 
586,429 lb to 7.4 million lb (266 to 3,372 mt), and the pair trawl 
vessel landings ranged from 190,416 lb to 7.2 million lb (90 to 3,263 
mt). To compensate for potential losses, midwater trawl vessels would 
have the choice to either seek alternative fishing grounds or fisheries 
and/or to re-rig to purse seine in Area 1A during the time of the 
restriction. All of the above choices have financial costs.

Open Access Incidental Catch Permit

    In addition to the Proposed Action, Amendment 1 considered another 
alternative for the open access incidental catch permit that would have 
allowed vessels that did not qualify for a limited access permit to 
obtain an open access incidental catch permit, which would restrict the 
vessel to a possession limit of 11,000 lb (5 mt) of herring per trip. 
This alternative would have provided a small added economic benefit to 
those vessels that received such a permit.

Vesssel Upgrade Restrictions

    With respect to vessel upgrade restrictions, Amendment 1 included 
two alternatives to the Proposed Action. One, no action, would have 
allowed herring vessels to increase in size up to 165 ft (50.3 m) in 
length overall, 750 GRT (680.4 mt), and 3,000 horsepower. Alternative 3 
would have allowed a vessel to increase its HP only once, whether 
through refitting or replacement. Such an increase could not have 
exceeded 50 percent of the HP of the vessel's baseline specifications, 
as applicable. The vessel's length, GRT, and NT could have been 
increased only once, whether through refitting or replacement. Any 
increase in any of these three specifications of vessel size could not 
exceed 25 percent of the vessel's baseline specifications, as 
applicable.
    For some fishery participants (particularly those if any with 
immediate plans to upgrade vessels), the proposed vessel upgrade 
restrictions may constrain future business opportunities. However, the 
restrictions included in this measure will reduce the likelihood of 
further capitalization of the industry. Introducing this measure is 
also likely to help sustain the viability of a diverse fleet.

List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: September 18, 2006.
Samuel D. Rauch, III
Deputy Assistant Admisitrator for Regulatory Programs, National Marine 
Fisheries Service.
    For reasons set forth in the preamble, 50 CFR part 648 is proposed 
to be amended as follows:

PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES

    1. The authority citation for part 648 continues to read as 
follows:

    Authority: 16 U.S.C. 1801 et seq.
    2. In Sec.  648.2, the definition of ``Category 1 herring vessel'' 
is removed, the definitions of ``Atlantic herring carrier'' and 
``Midwater trawl'' are revised, and the definition of ``Limited access 
herring vessel'' is added to read as follows:


Sec.  648.2  Definitions.

* * * * *
    Atlantic herring carrier means a fishing vessel that is issued a 
herring permit, and that does not have any gear on board capable of 
catching or processing herring, and that has on board a letter of 
authorization from the Regional Administrator to transport herring 
caught by another fishing vessel.
* * * * *
    Limited access herring vessel means a vessel that has been issued a 
valid permit for any type of limited access herring vessel permit 
described in Sec.  648.4.
* * * * *
    Midwater trawl gear means trawl gear that is designed to fish for, 
is capable of fishing for, or is being used to fish for pelagic 
species, no portion of which is designed to be or is operated in 
contact with the bottom at any time. The gear may not include discs, 
bobbins, or rollers on its footrope, or chafing gear as part of the 
net.
* * * * *

[[Page 56458]]

    3. In Sec.  648.4, paragraphs (a)(10) and (c)(2)(vi) are revised to 
read as follows:


Sec.  648.4  Vessel permits.

    (a) * * *
    (10) Atlantic herring vessels--(i) Except as provided herein, any 
vessel of the United States must have been issued and have on board a 
valid Atlantic herring permit to fish for, possess or land Atlantic 
herring in or from the EEZ. This requirement does not apply to the 
following:
    (A) A vessel that possesses herring solely for its use as bait, 
providing the vessel does not use or have on board purse seine, mid-
water trawl, pelagic gillnet, sink gillnet, or bottom trawl gear on any 
trip in which herring is fished for, possessed, or landed, and does not 
transfer, sell, trade, or barter such herring;
    (B) A skiff or other similar craft used exclusively to deploy the 
net in a purse seine operation during a fishing trip of a vessel that 
is duly permitted under this part; or
    (C) At-sea processors that do not harvest fish, provided that at-
sea processor vessels are issued the at-sea processor permit specified 
under Sec.  648.6 (a)(2).
    (ii) Atlantic herring carrier vessels. An Atlantic herring carrier 
vessel must have been issued and have on board a herring permit and a 
letter of authorization to transport Atlantic herring caught by another 
permitted fishing vessel. The letter of authorization exempts such a 
vessel from the VMS and IVR vessel reporting requirements as specified 
in subpart K of this part, except as otherwise required by this part. 
An Atlantic herring carrier vessel must request and obtain a letter of 
authorization from the Regional Administrator, and must report all 
herring carried from each vessel on a given trip in its Fishing Vessel 
Trip Report. The Fishing Vessel Trip Report must include the vessel 
name. Carrier vessels under a letter of authorization may not possess, 
transfer, or land any species except for Atlantic herring; may not 
conduct fishing activities or possess any fishing gear on board the 
vessel; must be used exclusively as an Atlantic herring carrier vessel; 
and must carry observers if required by NMFS. There is a minimum 
enrollment period of 7 calendar days.
    (iii) Vessel size limitation. A vessel of the United States is 
eligible for and may be issued an Atlantic herring permit to fish for, 
possess, or land Atlantic herring in or from the EEZ, except for any 
vessel that is [gteqt] 165 ft (50.3 m) in length overall (LOA), or > 
750 GRT (680.4 mt), or the vessel's total main propulsion machinery is 
> 3,000 horsepower. Vessels that exceed the size or horsepower 
restrictions are eligible to be issued an at-sea processing permit 
specified under Sec.  648.6 (a)(2).
    (iv) Limited access herring permits. (A) A vessel of the United 
States that fishes for, possesses, or lands more than 6,600 lb ( 3 mt) 
of herring, except vessels that fish exclusively in state waters for 
herring, must have been issued and carry on board one of the limited 
access herring permits described in paragraphs (a)(10)(iv)(A)(1) - (3) 
of this section, including both vessels engaged in pair trawl 
operations.
    (1) All Areas Limited Access Herring Permit. A vessel may fish for, 
possess, and land unlimited amounts of herring from all herring areas, 
provided the vessel qualifies for and has been issued this permit, 
subject to all other regulations of this part.
    (2) Areas 2 and 3 Limited Access Herring Permit. A vessel may fish 
for, possess, and land unlimited amounts of herring from herring Areas 
2 and 3, provided the vessel qualifies for and has been issued this 
permit, subject to all other regulations of this part.
    (3) Limited Access Incidental Catch Herring Permit. (i) A vessel 
that does not qualify for either of the permits specified in paragraphs 
(a)(10)(iv)(A)(1) and (2) of this section may fish for, possess, and 
land up to 55,000 lb (25 mt) of herring from any herring area, provided 
the vessel qualifies for and has been issued this permit, subject to 
all other regulations of this part.
    (ii) A vessel that does not qualify for an All Areas Limited Access 
Herring Permit specified in paragraphs (a)(10)(iv)(A)(1) of this 
section, but qualifies for the Areas 2 and 3 Limited Access Herring 
Permit specified in paragraph (a)(10)(iv)(A)(2) of this section, may 
fish for, possess, and land up to 55,000 lb (25 mt) of herring from 
Area 1, provided the vessel qualifies for and has been issued this 
permit, subject to all other regulations of this part.
    (B) Eligibility for All Areas and Areas 2 and 3 Limited Access 
Herring Permits, and Confirmation of Permit History (CPH). A vessel is 
eligible for and may be issued either an All Areas or Areas 2 and 3 
Limited Access Herring Permit if it meets the permit history criteria 
in paragraph (a)(10)(iv)(B)(1) of this section and the relevant landing 
requirements in paragraphs (a)(10)(iv)(B)(2) and (3) of this section.
    (1) Permit history criteria for All Areas and Areas 2 and 3 
Permits. (i) The vessel must have been issued a Federal herring permit 
(Category 1 or 2) that was valid as of November 10, 2005; or
    (ii) The vessel is replacing a vessel that was issued a Federal 
herring permit (Category 1 or 2) between November 10, 2003, and 
November 9, 2005. To qualify as a replacement vessel, the replacement 
vessel and the vessel being replaced must both be owned by the same 
vessel owner; or, if the vessel being replaced was sunk or destroyed, 
the vessel owner must have owned the vessel being replaced at the time 
it sunk or was destroyed; or, if the vessel being replaced was sold to 
another person, the vessel owner must provide a copy of a written 
agreement between the buyer of the vessel being replaced and the owner/
seller of the vessel, documenting that the vessel owner/seller retained 
the herring permit and all herring fishing and landings history.
     (2) Landings criteria for the All Areas Limited Access Herring 
Permit. (i) The vessel must have landed and sold at least 500 mt of 
herring in any one calendar year between January 1, 1993, and December 
31, 2003, as verified by NMFS records or documented through dealer 
receipts. The owners of vessels that fished in pair trawl operations 
may provide landings information as specified in paragraph 
(a)(10)(iv)(B)(2)(iii) of this section. Landings made by a vessel that 
is being replaced may be used to qualify a replacement vessel 
consistent with the requirements specified in paragraph 
(a)(10)(iv)(B)(1)(ii) of this section and the permit splitting 
prohibitions in paragraph (a)(10)(iv)(N) of this section.
    (ii) Extension of eligibility period for landings criteria for 
vessels under construction, reconstruction, or purchase contract. An 
applicant who submits written evidence that a vessel was under 
construction, reconstruction, or was under written contract for 
purchase as of December 31, 2003, may extend the period for determining 
landings specified in paragraph (a)(10)(iv)(B)(2)(i) of this section 
until December 31, 2004.
    (iii) Landings criteria for vessels using landings from pair trawl 
operations. To qualify for a limited access permit using landings from 
pair trawl operations, the owners of the vessels engaged in that 
operation must agree on how to divide such landings between the two 
vessels and apply for the permit jointly, as supported by the required 
NMFS dealer reports or signed dealer receipts.
    (3) Landings criteria for the Areas 2 and 3 Limited Access Herring 
Permit. (i) The vessel must have landed and sold at least 250 mt of 
herring in any one calendar year between January 1, 1993, and December 
31, 2003, as verified by NMFS records or documented through dealer 
receipts. The owners of vessels

[[Page 56459]]

that fished in pair trawl operations may provide landings information 
as specified in paragraph (a)(10)(iv)(B)(2)(iii) of this section. 
Landings made by a vessel that is being replaced may be used to qualify 
a replacement vessel consistent with the requirements specified in 
paragraph (a)(10)(iv)(B)(1)(ii) of this section and the permit 
splitting prohibitions in paragraph (a)(10)(iv)(N) of this section.
    (ii) Extension of eligibility period for landings criteria for 
vessels under construction, reconstruction or purchase contract. An 
applicant who submits written evidence that a vessel was under 
construction, reconstruction, or was under written contract for 
purchase as of December 31, 2003, may extend the period for determining 
landings specified in paragraph (a)(10)(iv)(B)(3)(i) of this section 
until December 31, 2004.
    (iii) Landings criteria for vessels using landings from pair trawl 
operations. See paragraph (a)(10)(iv)(B)(2)(iii) of this section.
    (4) CPH. A person who does not currently own a fishing vessel, but 
owned a vessel that satisfies the permit eligibility requirements in 
paragraph (a)(10)(iv)(B) that has sunk, been destroyed, or transferred 
to another person, but that has not been replaced, may apply for and 
receive a CPH that allows for a replacement vessel to obtain the 
relevant limited access herring permit if the fishing and permit 
history of such vessel has been retained lawfully by the applicant as 
specified in paragraph (a)(10)(iv)(B)(1)(ii) of this section and 
consistent with (a)(10)(iv)(N) of this section.
    (C) Eligibility for Incidental Catch Limited Access Herring Permit, 
and CPH. A vessel is eligible for and may be issued an Incidental 
Limited Access Herring Permit if it meets the permit history criteria 
specified in paragraph (a)(10)(iv)(C)(1) of this section and the 
landings criteria in paragraph (a)(10)(iv)(C)(2) of this section.
    (1) Permit history criteria. (i) The vessel must have been issued a 
Federal permit for Northeast multispecies, Atlantic mackerel, Atlantic 
herring, Loligo or Illex squid, or butterfish that was valid as of 
November 10, 2005; or
    (ii) The vessel meets the vessel replacement requirements criteria 
specified in paragraph (a)(10)(iv)(B)(1)(ii) of this section.
    (2) Landings criteria for Incidental Catch Limited Access Herring 
Permit. (i) The vessel must have landed and sold at least 15 mt of 
herring in any calendar year between January 1, 1988, and December 31, 
2003, as verified by NMFS records or documented through dealer 
receipts. The owners of vessels that fished in pair trawl operations 
may provide landings information as specified in paragraph 
(a)(10)(iv)(B)(2)(iii) of this section. Landings made by a vessel that 
is being replaced may be used to qualify a replacement vessel 
consistent with the requirements specified in paragraph 
(a)(10)(iv)(B)(1)(ii) of this section and the permit splitting 
prohibitions in paragraph (a)(10)(iv)(N) of this section.
    (ii) Extension of eligibility period for landings criteria for 
vessels under construction, reconstruction or purchase contract. An 
applicant who submits written evidence that a vessel was under 
construction, reconstruction, or was under written contract for 
purchase as of December 31, 2003, may extend the period for determining 
landings specified in paragraph (a)(10)(iv)(C)(2)(i) of this section 
until December 31, 2004.
    (3) CPH. An person who does not currently own a fishing vessel, but 
owned a vessel that satisfies the permit eligibility requirements in 
paragraph (a)(10)(iv)(C) that has sunk, been destroyed, or transferred 
to another person, but that has not been replaced, may apply for and 
receive a CPH that allows for a replacement vessel to obtain the 
relevant limited access herring permit if the fishing and permit 
history of such vessel has been retained lawfully by the applicant as 
specified in paragraph (a)(10)(iv)(B)(1)(ii) of this section and 
consistent with (a)(10)(iv)(N) of this section.
    (D) Application/renewal restrictions. (1) No one may apply for an 
initial limited access Atlantic herring permit or a CPH under paragraph 
(a)(10)(iv)(L) of this section, more than 12 months after the effective 
date of the final regulations establishing these permits, or after the 
abandonment or voluntary relinquishment of permit history as specified 
in paragraph (a)(10)(iv)(M) of this section.
    (2) An applicant who submits written proof that an eligible vessel 
was sold, with the seller retaining the herring history through a 
written agreement signed by both parties to the sale or transfer, may 
not utilize such history if the vessel's history was used to qualify 
another vessel for another limited access permit.
    (3) Application/renewal restrictions. See paragraph (a)(1)(i)(B) of 
this section.
    (E) Qualification restriction. See paragraph (a)(1)(i)(C) of this 
section.
    (F) Change in ownership. See paragraph (a)(1)(i)(D) of this 
section.
    (G) Replacement vessels. See paragraph (a)(1)(i)(E) of this 
section.
    (H) Upgraded vessel. See paragraph (a)(1)(i)(F) of this section.
    (I) Consolidation restriction. See paragraph (a)(1)(i)(G) of this 
section.
    (J) Vessel baseline specifications. See paragraph (a)(1)(i)(H) of 
this section. If a herring CPH is initially issued, the vessel that 
provided the CPH eligibility would establish the size baseline against 
which future vessel size limitations would be evaluated.
    (K) Limited access permit restrictions. [Reserved].
    (L) Confirmation of Permit History. See paragraph (a)(1)(i)(J) of 
this section.
    (M) Abandonment or voluntary relinquishment of permits. See 
paragraph (a)(1)(i)(K) of this section.
    (N) Restriction on permit splitting. See paragraph (a)(1)(i)(L) of 
this section. Furthermore, vessel owners who sold vessels with limited 
access permits and retained the herring history before applying for the 
initial limited access herring permit may not use the herring history 
to qualify a vessel for the initial limited access herring permit, if 
the issuance of such permit would violate the restrictions on permit 
splitting .
    (O) Appeal of denial of permit.--(1) Eligibility. Any applicant 
eligible to apply for a limited access herring permit who is denied 
such permit may appeal the denial to the Regional Administrator within 
30 days of the notice of denial. Any such appeal must be based on the 
grounds that the information used by the Regional Administrator was 
based on incorrect data, must be in writing, and must state the grounds 
for the appeal.
    (2) Appeal review. The Regional Administrator shall appoint a 
designee who shall make the initial decision on the appeal. The 
appellant may request a review of the initial decision by the Regional 
Administrator by so requesting in writing within 30 days of the notice 
of the initial decision. If the appellant does not request a review of 
the initial decision within 30 days, the initial decision is the final 
administrative action of the Department of Commerce. Such review will 
be conducted by a hearing officer appointed by the Regional 
Administrator. The hearing officer shall make findings and a 
recommendation to the Regional Administrator, which shall be advisory 
only. Upon receiving the findings and the recommendation, the Regional 
Administrator shall issue a final decision on the appeal. The Regional 
Administrator's decision is the final administrative action of the 
Department of Commerce.
    (3) Status of vessels pending appeal. A vessel denied a limited 
access herring permit may fish under the limited access herring permit, 
provided that the denial has been appealed, the appeal is

[[Page 56460]]

pending, and the vessel has on board a letter from the Regional 
Administrator authorizing the vessel to fish under the limited access 
category. The Regional Administrator shall issue such a letter for the 
pendency of any appeal. Any such decision is the final administrative 
action of the Department of Commerce on allowable fishing activity, 
pending a final decision on the appeal. The letter of authorization 
must be carried on board the vessel. If the appeal is finally denied, 
the Regional Administrator shall send a notice of final denial to the 
vessel owner; the authorizing letter becomes invalid 5 days after 
receipt of the notice of denial.
    (v) Open access herring permit. A vessel that has not been issued a 
limited access Atlantic herring permit may obtain an open access 
incidental Atlantic herring permit to possess up to 6,600 lb (3 mt) of 
herring per trip, and is limited to one landing per calendar day.
* * * * *
    (c) * * *
    (2) * * *
    (vi) Prior to issuance of a limited access Atlantic herring permit, 
a VMS unit provided by a NMFS-approved vendor must be installed and 
NMFS must receive a notice from the vendor that the VMS is activated.
* * * * *
    4. In Sec.  648.6, paragraph (a)(2) is revised to read as follows:


Sec.  648.6  Dealer/processor permits.

    (a) * * *
    (2) (i) At-sea mackerel processors. Notwithstanding the provisions 
of Sec.  648.4(a)(5), any vessel of the United States must have been 
issued and carry on board a valid at-sea processor permit issued under 
this section to receive over the side, possess, and process Atlantic 
mackerel harvested in or from the EEZ by a lawfully permitted vessel of 
the United States.
    (ii) Atlantic herring processing permit. A vessel of the United 
States, including a vessel that is > 165 ft (50.3 m) LOA, or > 750 GRT 
(680.4 mt), is eligible to obtain an Atlantic herring processing permit 
to receive and process Atlantic herring subject to the U.S. at-sea 
processing (USAP) allocation published by the Regional Administrator 
pursuant to Sec.  648.200. Such a vessel may not receive or process 
Atlantic herring caught in or from the EEZ unless the vessel has been 
issued and has on board an Atlantic herring processing permit.
* * * * *
    5. In Sec.  648.7, paragraph (b)(2)(i) is revised to read as 
follows:


Sec.  648.7  Recordkeeping and reporting requirements.

* * * * *
    (b) * * *
    (2) IVR system reports--(i) Atlantic herring owners or operators. 
The owner or operator of a vessel issued a permit to fish for Atlantic 
herring must report catches (retained and discarded) of herring each 
week to an IVR system, as specified in paragraphs (A) and (B) of this 
paragraph. The report shall include at least the following information, 
and any other information required by the Regional Administrator: 
Vessel identification, week in which species are caught, pounds 
retained, pounds discarded, management area fished, and pounds of 
herring caught in each management area for the week. The IVR reporting 
week begins on Sunday at 0001 hrs (12:01 AM) local time and ends 
Saturday at 2400 hrs (12:00 midnight). Weekly Atlantic herring catch 
reports must be submitted via the IVR system by midnight, Eastern Time, 
each Tuesday for the previous week. Reports are required even if 
herring caught during the week has not yet been landed. This report 
does not exempt the owner or operator from other applicable reporting 
requirements of Sec.  648.7.
    (A) The owner or operator of any vessel issued a limited access 
herring permit must submit an Atlantic herring catch report via the IVR 
system each week, regardless of how much herring is caught (including 
weeks when no herring is caught), unless exempted from this requirement 
by the Regional Administrator.
    (B) An owner or operator of any vessel issued an open access permit 
for Atlantic herring that catches [gteqt] 2,000 lb (907.2 kg) of 
Atlantic herring on any trip in a week must submit an Atlantic herring 
catch report via the IVR system for that week as required by the 
Regional Administrator.
    (C) Atlantic herring IVR reports are not required from Atlantic 
herring carrier vessels.
* * * * *
    6. In Sec.  648.9, paragraph (c)(2)(i)(C) is revised to read as 
follows:


Sec.  648.9  VMS requirements.

    (c) * * *
    (2) * * *
    (i) * * *
    (C) The vessel has been issued a limited access herring permit, and 
is in port, unless required by other permit requirements for other 
fisheries to transmit the vessel's location at all times. Such vessels 
must activate the VMS unit and enter the appropriate activity code 
prior to leaving port.
* * * * *
    7. In Sec.  648.13, paragraph (f) is revised to read as follows:


Sec.  648.13  Transfers at sea.

* * * * *
    (f) Atlantic herring. With the exception of transfers made to an 
at-sea processing vessel issued the required permit under Sec.  
648.6(a)(2), any person or vessel, including any vessel issued an 
Atlantic herring permit, is prohibited from transferring, receiving, or 
attempting to transfer or receive any Atlantic herring taken from the 
EEZ, except as authorized below:
    (1) Personal use as bait. (i) The operator of a vessel that is not 
issued an Atlantic herring permit may purchase and/or receive Atlantic 
herring at sea for personal use as bait, provided the vessel receiving 
the transfer does not have purse seine, midwater trawl, pelagic 
gillnet, sink gillnet, or bottom trawl gear on board;
    (ii) A vessel issued an Atlantic herring permit may transfer 
herring at sea to another vessel for personal use as bait:
    (A) Provided the transferring vessel is issued a letter of 
authorization to transfer fish, and reports all transfers on the 
Fishing Vessel Trip Report. The operator of the transferring vessel 
must show the letter of authorization to a representative of the vessel 
receiving fish or any authorized officer upon request; and
    (B) Provided that the transfer of herring at sea to another vessel 
for personal use as bait does not exceed the possession limit specified 
for the transferring vessel in Sec.  648.204, except that no more than 
2,000 lb (907.2 kg) of herring may be caught or transferred per trip 
and/or per calendar day if the vessel is in, or the fish were harvested 
from, a management area closed to fishing as specified in Sec.  
648.201.
    (2) Atlantic herring carrier vessels. (i) A vessel issued an 
Atlantic herring permit may operate as a herring carrier vessel and 
receive herring provided it is issued a carrier vessel letter of 
authorization and complies with the terms of that authorization, as 
specified in Sec.  648.4(a)(10)(ii).
    (ii) A vessel issued an Atlantic herring permit may transfer 
herring at sea to an authorized herring carrier vessel up to the 
possession limit specified in Sec.  648.204, except no more than 2,000 
lb (907.2 kg) of herring may be caught or transferred per trip and/or 
per calendar day if the vessel is in, or the fish were harvested from, 
an area closed to directed fishing as specified in Sec.  648.201.
    (3) If a herring management area has been closed to fishing as 
specified in Sec.  648.201, a vessel may not transfer

[[Page 56461]]

Atlantic herring harvested from or in the area to an IWP or Joint 
Venture vessel.
    (4) If the amount of herring transshipped equals the amount of the 
BT specified pursuant to Sec.  648.200, a vessel may not transfer 
Atlantic herring to a Canadian transshipment vessel permitted in 
accordance with Public Law 104-297.
    (5) Transfer to at-sea processors. A vessel issued an Atlantic 
herring permit may transfer herring to a vessel issued an at-sea 
processing permit specified in Sec.  648.6(a)(2), up to the possession 
limit specified in Sec.  648.204, except that no more than 2,000 lb 
(907.2 kg) of herring may be caught or transferred per trip and/or per 
calendar day if the vessel is in, or the fish were harvested from, a 
management area closed to directed fishing as specified in Sec.  
648.201.
* * * * *
    8. In Sec.  648.14, paragraph (bb)(8) is removed and reserved; 
paragraphs (a)(166)-(169), (bb) (7), (bb)(10)-(12), (bb)(14)-(18), 
(bb)(20), and (bb)(24)-(26) are revised; and paragraphs (bb)(19), and 
(bb)(21)-(23) are added to read as follows:


Sec.  648.14  Prohibitions.

    (a) * * *
    (166) Sell, purchase, receive, trade, barter, or transfer haddock 
or other regulated multispecies, or attempt to sell, purchase, receive, 
trade, barter, or transfer haddock or other regulated multispecies 
(cod, witch flounder, plaice, yellowtail flounder, pollock, winter 
flounder, windowpane flounder, redfish, and white hake) for, or 
intended for, human consumption landed by a limited access vessel as 
defined in Sec.  648.2.
    (167) Fail to comply with requirements for herring processors/
dealers that handle individual fish to separate out and retain all 
haddock offloaded from a limited access herring vessel, and to retain 
such catch for at least 12 hr, with the vessel that landed the haddock 
clearly identified by name.
    (168) Sell, purchase, receive, trade, barter, or transfer, or 
attempt to sell, purchase, receive, trade, barter, or transfer to 
another person any haddock or other regulated multispecies (cod, witch 
flounder, plaice, yellowtail flounder, pollock, winter flounder, 
windowpane flounder, redfish, and white hake) separated out from a 
herring catch offloaded from a limited access herring vessel as defined 
in Sec.  648.2.
    (169) While operating an at-sea herring processor, fail to comply 
with requirements for herring processors/dealers that handle individual 
fish to separate out and retain all haddock offloaded from a limited 
access herring vessel, and to retain such catch for at least 12 hr 
after landing, with the vessel that offloaded the haddock clearly 
identified by name.
* * * * *
    (bb) * * *
    (7) Possess, transfer, receive, or sell, or attempt to transfer, 
receive, or sell > 2,000 lb (907.2 kg) of Atlantic herring per trip, or 
land, or attempt to land > 2,000 lb (907.2 kg) of Atlantic herring per 
day in or from a management area closed pursuant to Sec.  648.201(a), 
if the vessel has been issued a valid Atlantic herring permit.
    (8) Reserved
* * * * *
    (10) Transit an area of the EEZ that is subject to a closure or 
other restraints on fishing to fishing for Atlantic herring pursuant to 
Sec.  648.201(a) with > 2,000 lb (907.2 kg) of herring on board, unless 
all fishing gear is stowed as specified by Sec.  648.23(b).
    (11) Catch, take, or harvest Atlantic herring in or from the EEZ 
with a U.S. vessel that exceeds the size limits specified in Sec.  
648.4(a)(10)(iii).
    (12) Process Atlantic herring caught in or from the EEZ in excess 
of the specification of USAP with a U.S. vessel that exceeds the size 
limits specified in Sec.  648.4(a)(10)(iii).
* * * * *
    (14) Catch, take, or harvest Atlantic herring in or from the EEZ 
for roe in excess of any allowed limit that may be established pursuant 
to Sec.  648.206(b)(24).
    (15) Catch, take, or harvest Atlantic herring in or from the EEZ, 
unless equipped with an operable VMS unit if the vessel is a limited 
access herring vessel as defined in Sec.  648.2.
    (16) Receive Atlantic herring in or from the EEZ solely for 
transport, unless issued a letter of authorization from the Regional 
Administrator.
    (17) Fail to comply with any of the requirements of a letter of 
authorization from the Regional Administrator.
    (18) If the vessel is a limited access herring vessel and is 
fishing for herring, fail to notify the NMFS Office of Law Enforcement 
of the time and date of landing via VMS at least 6 hr prior to landing 
or crossing the VMS demarcation line on its return trip to port.
    (19) If the vessel is a limited access herring vessel and is 
fishing for herring in the GOM/GB Exemption Area specified in Sec.  
648.80(a)(17), fail to notify NMFS at least 72 hours prior to departing 
on a trip for the purposes of observer deployment.
    (20) Possess, land, transfer, receive, sell, purchase, trade, or 
barter, or attempt to transfer, receive, purchase, trade, or barter, or 
sell more than 2,000 lb (907 kg) of Atlantic herring per trip taken 
from the GOM/GB Herring Exemption Area defined in Sec.  
648.86(a)(3)(ii)(A)(1) following the effective date of the 
determination that the haddock cap has been reached pursuant to Sec.  
648.86(a)(3), unless all of the herring possessed or landed by a vessel 
was caught outside of that area.
    (21) If fishing with midwater trawl or a purse seine gear, fail to 
comply with the requirements of Sec.  648.80(d) and (e).
    (22) If a limited access herring vessel, discard haddock at sea 
that has been brought on deck or pumped into the hold.
    (23) Transit the GOM/GB Herring Exemption Area when that area is 
limited to the 2,000-lb (907.2-kg) limit specified in Sec.  
648.86(a)(3)(ii)(A)(1) with more than 2,000 lb (907.2 kg) of herring, 
unless all the herring on board was caught outside of that area and all 
fishing gear is stowed and not available for immediate use as required 
by Sec.  648.23(b).
    (24) Fish for herring in Area 1A between June 1 and September 30 
with any gear other than purse seines or fixed gear.
    (25) Transit Area 1A between June 1 and September 30 with more than 
2,000 lb (907.2 kg) of herring on board with mid water trawl gear not 
properly stowed as per Sec.  648.23(b).
    (26) Possess or land more herring than is allowed for by the 
vessel's Atlantic herring permit.
* * * * *
    9. In Sec.  648.15, paragraphs (d)(1) and (e) are revised to read 
as follows:


Sec.  648.15  Facilitation of enforcement.

* * * * *
    (d) Retention of haddock by herring dealers and processors. (1) 
Federally permitted herring dealers and processors, including at-sea 
processors, that receive herring from limited access herring vessels, 
and that cull or separate out from the herring catch all fish other 
than herring in the course of normal operations, must separate out and 
retain all haddock offloaded from a Category 1 herring vessel. Such 
haddock may not be sold, purchased, received, traded, bartered, or 
transferred, and must be retained, after they have been separated, for 
at least 12 hr for dealers and processors on land, and for 12 hr after 
landing by at-sea processors. The dealer or processor, including at-sea 
processors, must clearly indicate the vessel that landed the retained 
haddock or transferred the retained haddock to an at-sea processor. Law 
enforcement

[[Page 56462]]

officials must be given access to inspect the haddock.
* * * * *
    (e) Retention of haddock by limited access herring vessels. All 
limited access herring vessels must retain all the haddock that they 
catch.
    10. In Sec.  648.80, paragraphs (d)(4)through (6) and (e)(4) 
through (6) are revised to read as follows:


Sec.  648.80  NE Multispecies regulated mesh areas and restrictions on 
gear and methods of fishing.

* * * * *
    (d) * * *
    (4) The vessel does not fish for, possess or land NE multispecies, 
except that limited access herring vessels may possess and land haddock 
or other regulated species consistent with the incidental catch 
allowance and bycatch caps specified in Sec.  648.86(a)(3). Such 
haddock or other regulated NE multispecies may not be sold, purchased, 
received, traded, bartered, or transferred, or attempted to be sold, 
purchased, received, traded, bartered, or transferred for, or intended 
for, human consumption. Haddock or other regulated NE multispecies that 
are separated out from the herring catch pursuant to Sec.  648.15(d) 
may not be sold, purchased, received, traded, bartered, or transferred, 
or attempted to be sold, purchased, received, traded, bartered, or 
transferred for any purpose. Limited access herring vessels may not 
discard haddock that has been brought on the deck or pumped into the 
hold;
    (5) To fish for herring under this exemption, limited access 
herring vessels must provide notice to NMFS of the vessel name; contact 
name for coordination of observer deployment; telephone number for 
contact; and the date, time, and port of departure, at least 72 hr 
prior to beginning any trip into these areas for the purposes of 
observer deployment; and
    (6) All limited access herring vessels on a declared herring trip 
must notify NMFS Office of Law Enforcement through VMS of the time and 
place of offloading at least 6 hr prior to crossing the VMS demarcation 
line on their return trip to port, or, for vessels that have not fished 
seaward of the VMS demarcation line, at least 6 hr prior to landing. 
The Regional Administrator may adjust the prior notification minimum 
time through publication of a notice in the Federal Register consistent 
with the Administrative Procedure Act.
* * * * *
    (e) * * *
    (4) The vessel does not fish for, possess or land NE multispecies, 
except that limited access herring vessels, as defined in Sec.  648.2, 
may possess and land haddock or other regulated species consistent with 
the incidental catch allowance and bycatch caps specified in Sec.  
648.86(a)(3). Such haddock or other regulated multispecies may not be 
sold, purchased, received, traded, bartered, or transferred, or 
attempted to be sold, purchased, received, traded, bartered, or 
transferred for, or intended for, human consumption. Haddock or other 
regulated species that are separated out from the herring catch 
pursuant to Sec.  648.15(d) may not be sold, purchased, received, 
traded, bartered, or transferred, or attempted to be sold, purchased, 
received, traded, bartered, or transferred for any purpose. Limited 
access herring vessels may not discard haddock that has been brought on 
the deck or pumped into the hold;
    (5) To fish for herring under this exemption, limited access 
herring vessels must provide notice to NMFS of the vessel name; contact 
name for coordination of observer deployment; telephone number for 
contact; and the date, time, and port of departure, at least 72 hr 
prior to beginning any trip into these areas for the purposes of 
observer deployment; and
    (6) All limited access herring vessels must notify NMFS Office of 
Law Enforcement through VMS of the time and place of offloading at 
least 6 hr prior to crossing the VMS demarcation line on their return 
trip to port, or, for vessels that have not fished seaward of the VMS 
demarcation line, at least 6 hr prior to landing. The Regional 
Administrator may adjust the prior notification minimum time through 
publication of a notice in the Federal Register consistent with the 
Administrative Procedure Act.
* * * * *
    11. In Sec.  648.83, paragraph (b)(4) is revised to read as 
follows:


Sec.  648.83  Multispecies minimum fish sizes.

* * * * *
    (b) * * *
    (4) Limited access herring vessels may possess and land haddock and 
other regulated species that are smaller than the minimum size 
specified under Sec.  648.83, consistent with the bycatch caps 
specified in Sec. Sec.  648.86(a)(3) and 648.86 (k). Such fish may not 
be sold for human consumption.
* * * * *
    12. In Sec.  648.85, paragraph (d) is revised to read as follows:


Sec.  648.85  Special management programs.

* * * * *
    (d) Incidental catch allowance for limited access herring vessels. 
The incidental catch allowance for limited access herring vessels is 
defined as 0.2 percent of the combined target TAC for Gulf of Maine 
haddock and Georges Bank haddock (U.S. landings only) specified 
according to ' 648.90(a) for a particular multispecies fishing year.
    13. In Sec.  648.86, paragraphs (a)(3), and (k) are revised to read 
as follows:


Sec.  648.86  Multispecies possession restrictions.

* * * * *
    (a) * * *
    (3)(i) Incidental catch allowance for limited access herring 
vessels. Limited access herring vessels may possess and land haddock on 
all trips that do not use a NE multispecies DAS, subject to the 
requirements specified in Sec.  648.80(d) and (e).
    (ii) Haddock Incidental Catch Cap. (A)(1) When the Regional 
Administrator has determined that the incidental catch allowance in 
Sec.  648.85(d) has been caught, all vessels issued an Atlantic herring 
permit or fishing in the Federal portion of the GOM/GB Herring 
Exemption Area, defined below, are prohibited from fishing for, 
possessing, or landing herring in excess of 2,000 lb (907.2 kg) per 
trip in or from the GOM/GB Herring Exemption Area, unless all herring 
possessed and landed by the vessel were caught outside the GOM/GB 
Herring Exemption Area and the vessel complies with the gear stowage 
provisions specified in Sec.  648.23(b) while transiting the Exemption 
Area. Upon this determination, the haddock possession limit is reduced 
to 0 lb (0 kg) for all limited access herring vessels, regardless of 
where they were fishing. In making this determination, the Regional 
Administrator shall use haddock landings observed by NMFS-approved 
observers and law enforcement officials, and reports of haddock catch 
submitted by vessels and dealers pursuant to the reporting requirements 
of this part. The GOM/GB Herring Exemption Area is defined by the 
straight lines connecting the following points in the order stated 
(copies of a map depicting the area are available from the Regional 
Administrator upon request):

[[Page 56463]]



                      GB/GOM Herring Exemption Area
------------------------------------------------------------------------
                Point                       N. lat.          W. long.
------------------------------------------------------------------------
                  1                       41[deg] 33.05'     70[deg] 00'
                  2                          41[deg] 20'     70[deg] 00'
                  3                          41[deg] 20'     69[deg] 50'
                  4                          41[deg] 10'     69[deg] 50'
                  5                          41[deg] 10'     69[deg] 30'
                  6                          41[deg] 00'     69[deg] 30'
                  7                          41[deg] 00'     68[deg] 50'
                  8                          39[deg] 50'     68[deg] 50'
                  9                          39[deg] 50'     66 [deg]40'
                  10                         40 [deg]30'     66[deg] 40'
                  11                         40 [deg]30'  64 [deg]44.34'
                  12                         41 [deg]50'  66 [deg]51.94'
                  13                         41 [deg]50'     67 [deg]40'
                  14                         44 [deg]00'     67 [deg]40'
                  15                         44 [deg]00'     67 [deg]50'
                  16                         44 [deg]10'     67 [deg]50'
                  17                         44 [deg]27'  67 [deg]59.18'
                  18                          ME, NH, MA  ..............
                                              Coastlines
                  19                      41 [deg]33.05'     70[deg] 00'
------------------------------------------------------------------------

    (2) The haddock incidental catch cap specified is for the NE 
multispecies fishing year (May 1 April 30), which differs from the 
herring fishing year (January 1 December 31). If the haddock catch cap 
is attained by the limited access herring fishery, the 2,000-lb (907.2-
kg) limit on herring possession and landings in the GOM/GB Herring 
Exemption Area will be in effect until the end of the NE multispecies 
fishing year. For example, the 2006 haddock catch cap would be 
specified for the period May 1, 2006 April 30, 2007, and the 2007 
haddock catch cap would be specified for the period May 1, 2007 April 
30, 2008. If the catch of haddock by limited access herring vessels 
reached the 2006 catch cap at any time prior to the end of the NE 
multispecies fishing year (April 30, 2007), the 2,000-lb (907.2-kg) 
limit on possession or landing herring in the GOM/GB Herring Exemption 
Area would extend through April 30, 2007, at which time the 2007 catch 
cap would go into effect.
* * * * *
    (k) Other regulated NE multispecies possession restrictions for 
limited access herring vessels. Limited access herring vessels may 
possess and land up to 100 lb (45 kg) of other regulated NE 
multispecies on all trips that do not use a multispecies DAS, subject 
to the requirements specified in Sec.  648.80(d) and (e). Such fish may 
not be sold for human consumption.
    14. Subpart K is revised to read as follows:

Subpart K--Management Measures for the Atlantic Herring Fishery

Sec.
648.200 Specifications.
648.201 Closures and TAC controls.
648.202 Season and area restrictions.
648.203 Gear restrictions.
648.204 Possession restrictions.
648.205 VMS requirements.
648.206 Framework provisions.
648.207 Herring research quota (RQ).

Subpart K--Management Measures for the Atlantic Herring Fishery


Sec.  648.200  Specifications.

    (a) The Atlantic Herring Plan Development Team (PDT) shall meet at 
least every 3 years, but no later than July of the year before new 
specifications are implemented, with the Atlantic States Marine 
Fisheries Commission's (Commission) Atlantic Herring Plan Review Team 
(PRT) to develop and recommend the following specifications for a 
period of 3 years for consideration by the New England Fishery 
Management Council's Atlantic Herring Oversight Committee: Optimum 
yield (OY), domestic annual harvest (DAH), domestic annual processing 
(DAP), total foreign processing (JVPt), joint venture processing (JVP), 
internal waters processing (IWP), U.S. at-sea processing (USAP), border 
transfer (BT), total allowable level of foreign fishing (TALFF), 
reserve (if any), and the amount to be set aside for the research quota 
(RQ from 0 to 3 percent of the TAC from any management area). The PDT 
and PRT shall also recommend the total allowable catch (TAC) for each 
management area and sub-area, including seasonal quotas as specified at 
Sec.  648.201(f). Recommended specifications shall be presented to the 
New England Fishery Management Council (Council).
    (1) The PDT will meet with the Commission's PRT to review the 
status of the stock and the fishery and prepare a Stock Assessment and 
Fishery Evaluation (SAFE) report every 3 years. The Herring PDT will 
meet at least once during interim years to review the status of the 
stock relative to the overfishing definition if information is 
available to do so. When conducting a 3-year review and preparing a 
SAFE Report, the PDT/PRT will recommend to the Council/Commission any 
necessary adjustments to the specifications for the upcoming three 
years.
    (2) If the Council determines, based on information provided by the 
PDT/PRT or other stock-related information, that the specifications 
should be adjusted during the 3-year time period, it can do so through 
the same process outlined in this section during one or both of the 
interim years.
    (b) Guidelines. As the basis for its recommendations under 
paragraph (a) of this section, the PDT shall review available data 
pertaining to: Commercial and recreational catch data; current 
estimates of fishing mortality; stock status; recent estimates of 
recruitment; virtual population analysis results and other estimates of 
stock size; sea sampling and trawl survey data or, if sea sampling data 
are unavailable, length frequency information from trawl surveys; 
impact of other fisheries on herring mortality; and any other relevant 
information. The specifications recommended pursuant to paragraph (a) 
of this section must be consistent with the following:
    (1) OY must be equal to or less than the allowable biological catch 
(ABC), as adjusted by subtracting an estimate of the expected Canadian 
New Brunswick fixed gear and GB herring catch.
    (2) OY shall not exceed MSY, unless an OY that exceeds MSY in a 
specific year is consistent with a control rule that ensures the 
achievement of MSY and OY on a continuing basis.
    (3) Factors to be considered in assigning an amount, if any, to the 
reserve shall include:
    (i) Uncertainty and variability in the estimates of stock size and 
ABC;
    (ii) Uncertainty in the estimates of Canadian harvest from the 
coastal stock complex;
    (iii) The requirement to insure the availability of herring to 
provide controlled opportunities for vessels in other fisheries in the 
Mid-Atlantic and New England;
    (iv) Excess U.S. harvesting capacity available to enter the herring 
fishery;
    (v) Total world export potential by herring producer countries;
    (vi) Total world import demand by herring consuming countries;
    (vii) U.S. export potential based on expected U.S. harvests, 
expected U.S. consumption, relative prices, exchange rates, and foreign 
trade barriers;
    (viii) Increased/decreased revenues to U.S. harvesters (with/
without joint ventures);
    (ix) Increased/decreased revenues to U.S. processors and exporters; 
and
    (x) Increased/decreased U.S. processing productivity.
    (4) Adjustments to TALFF, if any, will be made based on updated 
information relating to status of stocks, estimated and actual 
performance of domestic and foreign fleets, and other relevant factors.
    (c) The Atlantic Herring Oversight Committee shall review the 
recommendations of the PDT and shall consult with the Commission's 
Herring Section. Based on these recommendations and any public comment 
received, the Herring Oversight Committee shall recommend to the 
Council appropriate specifications for a 3-year period. The

[[Page 56464]]

Council shall review these recommendations and, after considering 
public comment, shall recommend appropriate 3-year specifications to 
NMFS. NMFS shall review the recommendations, consider any comments 
received from the Commission, and shall publish notification in the 
Federal Register proposing 3-year specifications. If the proposed 
specifications differ from those recommended by the Council, the 
reasons for any differences shall be clearly stated and the revised 
specifications must satisfy the criteria set forth in paragraph (b) of 
this section.
    (d) NMFS shall make a final determination concerning the 
specifications for Atlantic herring. Notification of the final 
specifications and responses to public comments shall be published in 
the Federal Register. If the final specification amounts differ from 
those recommended by the Council, the reason(s) for the difference(s) 
must be clearly stated and the revised specifications must be 
consistent with the criteria set forth in paragraph (b) of this 
section. The previous year's specifications shall remain effective 
until they are revised through the specification process.
    (e) In-season adjustments. (1) The specifications and TACs 
established pursuant to this section may be adjusted by NMFS, after 
consulting with the Council, during the fishing year by publishing 
notification in the Federal Register stating the reasons for such 
action and providing an opportunity for prior public comment. Any 
adjustments must be consistent with the Atlantic Herring FMP objectives 
and other FMP provisions.
    (2) If a total allowable catch reserve (TAC reserve) is specified 
for an area, NMFS may make any or all of that TAC reserve available to 
fishers after consulting with the Council. NMFS shall propose any 
release of the TAC reserve in the Federal Register and provide an 
opportunity for public comment. After considering any comments 
received, any release of the TAC reserve shall be announced through 
notification in the Federal Register.
    (f) Management areas. The specifications process establishes TACs 
and other management measures for the three management areas, which may 
have different management measures. Management Area 1 is subdivided 
into inshore and offshore sub-areas. The management areas are defined 
as follows:
    (1) Management Area 1 (Gulf of Maine): All U.S. waters of the Gulf 
of Maine (GOM) north of a line extending from the eastern shore of 
Monomoy Island at 42[deg]53'14'' N. lat., 67[deg] 44'35'' W. long., 
thence northerly along the Hague Line to the U.S.-Canadian border, to 
include state and Federal waters adjacent to the States of Maine, New 
Hampshire, and Massachusetts. Management Area 1 is divided into Area 1A 
(inshore) and Area 1B (offshore). The line dividing these areas is 
described by the following coordinates:

------------------------------------------------------------------------
                    Point                     N. lat.       W. long.
------------------------------------------------------------------------
                  1                           41[deg]        70[deg]00'
                                                  58'
                  2                           42[deg]        70[deg]00'
                                                  38'
                  3                           42[deg]        69[deg]40'
                                                  53'
                  4                           43[deg]        69[deg]00'
                                                  12'
                  5                           43[deg]        68[deg]00'
                                                  40'
                  6                           43[deg]   67[deg]22' (the
                                                  58'       U.S.-Canada
                                                               Maritime
                                                              Boundary)
------------------------------------------------------------------------

    (2) Management Area 2 (South Coastal Area): All waters west of 
70[deg] 00' W . long., south of 41[deg]39' N. lat., to include state 
and Federal waters adjacent to the States of Massachusetts, Rhode 
Island, Connecticut, New York, New Jersey, Delaware, Maryland, 
Virginia, and North Carolina.
    (3) Management Area 3 (Georges Bank): All U.S. waters east of 
70[deg]00' W. long. and southeast of the line that runs from a point at 
70[deg]00' W. long. and 41[deg]39' N. lat., northeasterly to the Hague 
Line at 42[deg]53'14'' N. lat., 67[deg]44'35'' W. long.


Sec.  648.201  Closures and TAC controls.

    (a) If NMFS determines that catch will reach 95 percent of the 
annual TAC allocated to a management area before the end of the fishing 
year, or 95 percent of the Area 1A TAC allocated to the first seasonal 
period as set forth in paragraph (f) of this section, NMFS shall 
prohibit a vessel, beginning the date the catch is projected to reach 
95 percent of the TAC, from fishing for, possessing, catching, 
transferring, or landing >2,000 lb (907.2 kg) of Atlantic herring per 
trip and/or >2,000 lb (907.2 kg) of Atlantic herring per day in such 
area pursuant to paragraph (e) of this section, except as provided in 
paragraphs (c) and (d) of this section. These limits shall be enforced 
based on a calendar day, without regard to the length of the trip.
    (b) The percent of the TAC that triggers imposition of the 2,000-lb 
(907.2-kg) limit specified in paragraph (a) of this section may be 
adjusted through the specification process described in Sec.  648.200. 
Any lowering of the percent of the TAC that triggers the 2,000-lb 
(907.2-kg) limit specified in paragraph (a) of this section must be 
accomplished through the framework adjustment or amendment processes.
    (c) A vessel may transit an area that is limited to the 2,000-lb 
(907.2-kg) limit specified in paragraph (a) of this section with > 
2,000 lb (907.2 kg) of herring on board, providing such herring were 
caught in an area or areas not subject to the 2,000-lb (907.2-kg) limit 
specified in paragraph (a) of this section, and that all fishing gear 
is stowed and not available for immediate use as required by Sec.  
648.23(b), and provided the vessel is issued a vessel permit 
appropriate to the amount of herring on board and the area where the 
herring was harvested.
    (d) A vessel may land in an area that is limited to the 2,000-lb 
(907.2-kg) limit specified in paragraph (a) of this section with > 
2,000 lb (907.2 kg) of herring on board, providing such herring were 
caught in an area or areas not subject to the 2,000-lb (907.2-kg) limit 
specified in paragraph (a) of this section, and that all fishing gear 
is stowed and not available for immediate use as required by Sec.  
648.23(b), and provided the vessel is issued a vessel permit 
appropriate to the amount of herring on board and the area where the 
herring was harvested.
    (e) NMFS shall implement fishing restrictions as specified in 
paragraph (a) of this section by publication of a notification in the 
Federal Register, without further opportunity for public comment.
    (f) The TAC for Management Area 1A is divided into two seasonal 
periods. The first season extends from January 1 through May 31, and 
the second season extends from June 1 through December 31. Seasonal 
TACs for Area 1A, including the specification of the seasonal periods, 
shall be set through the annual specification process described in 
Sec.  648.200.
    (g) 500 mt of the Area 1A TAC shall be allocated for the fixed gear 
fisheries in Area !A (weirs and stop seines) that occur west of 44[deg] 
36.2' N. Lat. and 67[deg] 16.8' W. Long (Cutler, Maine). This set-aside 
shall be available for harvest by fixed gear within the specified area 
until November 1 of each fishing year. Any portion of this allocation 
that has not been utilized by November 1 shall be restored to the TAC 
allocation for Area 1A.


Sec.  648.202  Season and area restrictions.

    Purse Seine/Fixed Gear Only Area (PS/FG). Limited access herring 
vessels may not use, deploy, or fish with midwater trawl gear in Area 
1A from June 1 September 30 of each fishing year. A limited access 
herring vessel with midwater trawl gear on board may transit Area 1A 
from June 1-September 30, provided such midwter trawl gear is

[[Page 56465]]

stowed pursuant to Sec.  648.23(b). Vessels may use any authorized gear 
type to harvest herring in Area 1A from October 1 May 31.


Sec.  648.203  Gear restrictions.

    (a) Midwater trawl gear may only be used by a vessel issued a valid 
herring permit in the GOM/GB Exemption Area as defined in Sec.  
648.80(a)(17), and in the Nantucket Lightship Area as described in 
Sec.  648.81(c)(1), provided it complies with the midwater trawl gear 
exemption requirements specified under the NE multispecies regulations 
at Sec.  648.80(d), including issuance of a Letter of Authorization.
    (b) Purse seine gear may only be used by a vessel issued a valid 
herring permit in the GOM/GB Exemption Area as defined in Sec.  
648.80(a)(17), provided it complies with the purse seine exemption 
requirements specified under the NE multispecies requirements at Sec.  
648.80(e), including issuance of a Letter of Authorization.


Sec.  648.204  Possession restrictions.

    (a) A vessel must be issued a valid limited access herring permit 
to fish for, possess, or land more than 6,600 lb (3 mt) of Atlantic 
herring from or in the EEZ from any herring management area, provided 
that the area has not been closed due to the attainment of 95 percent 
of the TAC allocated to the area, as specified in Sec.  648.201.
    (1) A vessel issued an All Areas Limited Access Herring Permit is 
authorized to fish for, possess, or land Atlantic herring with no 
possession restriction from any of the herring management areas defined 
in Sec.  648.200(f), provided that the area has not been closed due to 
the attainment of 95 percent of the TAC allocated to the area, as 
specified in Sec.  648.201.
    (2) A vessel issued only an Areas 2 and 3 Limited Access Herring 
Permit is authorized to fish for, possess, or land Atlantic herring 
with no possession restriction only from Area 2 or Area 3 as defined in 
Sec.  648.200(f), provided that the area has not been closed due to the 
attainment of 95 percent of the TAC allocated to the area, as specified 
in Sec.  648.201. Such a vessel may fish in Area 1 only if issued an 
open access herring permit or a Limited Access Incidental Catch Herring 
Permit, and only as authorized by the respective permit.
    (3) A vessel issued a Limited Access Incidental Catch Herring 
Permit is authorized to fish for, possess, or land up to 55,000 lb (25 
mt) of Atlantic herring in any calendar day, from any management area 
defined in Sec.  648.200(f), provided that the area has not been closed 
due to the attainment of 95 percent of the TAC allocated to the area.
    (4) A vessel issued an open access herring permit may not fish for, 
possess, or land more than 6,600 lb (3 mt) of Atlantic herring from any 
herring management area per trip and/or per calendar day, provided that 
the area has not been closed due to the attainment of 95 percent of the 
TAC allocated to the area, as specified in Sec.  648.201.
    (5) Herring vessels may possess herring roe provided that the 
carcasses of the herring from which it came are not discarded at sea.
    (b) Both vessels involved in a pair trawl operation must be issued 
valid permits to fish for, possess or land Atlantic herring harvested 
from any management area. Both vessels must be issued the permit 
appropriate for the amount of herring jointly possessed by both of the 
vessels participating in the pair trawl operation.


Sec.  648.205  VMS requirements.

    The owner or operator of any limited access herring vessel (with 
the exception of fixed gear fishermen), must install and operate a VMS 
unit consistent with the requirements of Sec.  648.9. The VMS unit must 
be installed on board, and must be operable before the vessel may begin 
fishing. Atlantic herring carrier vessels are not required to have VMS. 
At least 1 hour prior to leaving port, the owner or authorized 
representative of a herring vessel that is required to use VMS as 
specified in this section must notify the Regional Administrator by 
entering the appropriate VMS code that the vessel will be participating 
in the herring fishery. VMS codes and instructions are available from 
the Regional Administrator upon request.


Sec.  648.206  Framework provisions.

    (a) Framework adjustment process. In response to the triennial 
review, or at any other time, the Council may initiate action to add or 
adjust management measures if it finds that action is necessary to meet 
or be consistent with the goals and objectives of the Atlantic Herring 
FMP, or to address gear conflicts as defined under Sec.  600.10 of this 
chapter.
    (1) Adjustment process. After a management action has been 
initiated, the Council shall develop and analyze appropriate management 
measures over the span of at least two Council meetings. The Council 
may delegate authority to the Herring Oversight Committee to conduct an 
initial review of the options being considered. The Oversight Committee 
shall review the options and relevant information, consider public 
comment, and make a recommendation to the Council.
    (2) After the first framework meeting, the Council may refer the 
issue back to the Herring Oversight Committee for further 
consideration, make adjustments to the measures that were proposed, or 
approve of the measures and begin developing the necessary documents to 
support the framework adjustments. If the Council approves the proposed 
framework adjustments, the Council shall identify, at this meeting, a 
preferred alternative and/or identify the possible alternatives.
    (3) A framework document shall be prepared that discusses and shows 
the impacts of the alternatives. It shall be available to the public 
prior to the second or final framework meeting.
    (4) After developing management actions and receiving public 
testimony, the Council shall make a recommendation to NMFS. The 
Council's recommendation must include supporting rationale and, if 
changes to the management measures are recommended, an analysis of 
impacts and a recommendation to NMFS on whether to issue the management 
measures as a final rule. If the Council recommends that the management 
measures should be issued as a final rule, the Council must consider at 
least the following factors and provide support and analysis for each 
factor considered:
    (i) Whether the availability of data on which the recommended 
management measures are based allows for adequate time to publish a 
proposed rule, and whether regulations have to be in place for an 
entire harvest/fishing season.
    (ii) Whether there has been adequate notice and opportunity for 
participation by the public and members of the affected industry in the 
development of the Council's recommended management measures.
    (iii) Whether there is an immediate need to protect the resource or 
to impose management measures to resolve gear conflicts.
    (iv) Whether there will be a continuing evaluation of management 
measures adopted following their implementation as a final rule.
    (5) If the Council's recommendation to NMFS includes adjustments or 
additions to management measures, after reviewing the Council's 
recommendation and supporting information NMFS may:
    (i) Concur with the Council's recommended management measures and 
determine that the recommended management measures should be published 
as a final rule in the Federal

[[Page 56466]]

Register based on the factors specified in paragraphs (c)(4)(i)-(iv) of 
this section.
    (ii) Concur with the Council's recommendation and determine that 
the recommended management measures should be first published as a 
proposed rule in the Federal Register. After additional public comment, 
if NMFS concurs with the Council's recommendation, the measures shall 
be issued as a final rule in the Federal Register.
    (iii) If NMFS does not concur, the Council shall be notified in 
writing of the reasons for the non-concurrence.
    (b) Possible framework adjustment measures. Measures that may be 
changed or implemented through framework action include:
    (1) Management area boundaries or additional management areas;
    (2) Size, timing, or location of new or existing spawning area 
closures;
    (3) Closed areas other than spawning closures;
    (4) Restrictions in the amount of fishing time;
    (5) A days-at-sea system;
    (6) Adjustments to specifications;
    (7) Adjustments to the Canadian catch deducted when determining 
specifications;
    (8) Distribution of the TAC;
    (9) Gear restrictions (such as mesh size, etc.) or requirements 
(such as bycatch-reduction devices, etc.);
    (10) Vessel size or horsepower restrictions;
    (11) Closed seasons;
    (12) Minimum fish size;
    (13) Trip limits;
    (14) Seasonal, area, or industry sector quotas;
    (15) Measures to describe and identify essential fish habitat 
(EFH), fishing gear management measures to protect EFH, and designation 
of habitat areas of particular concern within EFH;
    (16) Measures to facilitate aquaculture, such as minimum fish 
sizes, gear restrictions, minimum mesh sizes, possession limits, 
tagging requirements, monitoring requirements, reporting requirements, 
permit restrictions, area closures, establishment of special management 
areas or zones, and any other measures included in the FMP;
    (17) Changes to the overfishing definition;
    (18) Vessel monitoring system requirements;
    (19) Limits or restrictions on the harvest of herring for specific 
uses;
    (20) Quota monitoring tools, such as vessel, operator, or dealer 
reporting requirements;
    (21) Permit and vessel upgrading restrictions;
    (22) Implementation of measures to reduce gear conflicts, such as 
mandatory monitoring of a radio channel by fishing vessels, gear 
location reporting by fixed gear fishermen, mandatory plotting of gear 
by mobile fishermen, standards of operation when conflict occurs, fixed 
gear marking or setting practices; gear restrictions for certain areas, 
vessel monitoring systems, restrictions on the maximum number of 
fishing vessels, and special permitting conditions;
    (23) Limited entry or controlled access system;
    (24) Specification of the amount of herring to be used for roe
    (25) Any other measure currently included in the FMP;(26) Measures 
to address bycatch and bycatch monitoring;
    (27) Requirements for a herring processor survey;
    (28) TAC set-aside amounts, provisions, adjustments; and
    (29) In-season Adjustments to TACs.
     (c) Emergency action. Nothing in this section is meant to derogate 
from the authority of the Secretary to take emergency action under 
section 305(e) of the Magnuson-Stevens Act.


Sec.  648.207  Herring research quota (RQ).

    (a) NMFS shall publish a Request for Proposals (RFP) in the Federal 
Register, consistent with procedures and requirements established by 
the NOAA Grants Office, to solicit proposals from industry for the 
upcoming 3 fishing years, based on research priorities identified by 
the Council.
    (b) Proposals submitted in response to the RFP must include the 
following information, as well as any other specific information 
required within the RFP: A project summary that includes the project 
goals and objectives; the relationship of the proposed research to 
herring research priorities and/or management needs; project design; 
participants other than the applicant, funding needs, breakdown of 
costs, and the vessel(s) for which authorization is requested to 
conduct research activities.
    (c) NMFS shall convene a review panel, including technical experts, 
to review proposals submitted in response to the RFP. Each panel member 
shall recommend which research proposals should be authorized to 
utilize research quota, based on the selection criteria described in 
the RFP.
    (d) The Northeast Fisheries Science Center Director (NEFSC 
Director) and the NOAA Grants Office shall consider each panel member's 
recommendation, provide final approval of the projects and the Regional 
Administrator may, when appropriate, exempt selected vessel(s) from 
regulations specified in each of the respective FMPs through written 
notification to the project proponent.
    (e) The grant awards approved under the RFPs shall be for the 
upcoming 3 fishing years, unless the Council identifies new/different 
research priorities during the interim years and decides to publish a 
second RFP. Proposals to fund research that would start prior to, or 
that would end after the fishing year, are not eligible for 
consideration. The RSA must be utilized in the same fishing year in 
which it was distributed (i.e., RSA and compensation trips cannot be 
rolled over into future years). However, the money generated from the 
RSA may be rolled over into, or used to fund research in future years, 
consistent with the multi-year proposal.
    (f) If a proposal is disapproved by the NEFSC Director or the NOAA 
Grants Office, or if the NEFSC Director determines that the allocated 
research quota cannot be utilized by a project, the Northeast Science 
and Research Director shall reallocate the unallocated or unused amount 
of research quota to the respective commercial and recreational 
fisheries by publication of a notice in the Federal Register in 
compliance with the Administrative Procedure Act, provided that the 
reallocation of the unallocated or unused amount of research quota is 
in accord with National Standard 1, and can be available for harvest 
before the end of the fishing year for which the research quota is 
specified.
    (g) Whenever possible, research proposals will be reviewed and 
approved prior to the publication of final quota specifications for the 
upcoming fishing years. In the event that the approved proposals do not 
make use of any or all of the set-asides, the unutilized portion of the 
set-aside would be released back to its respective management area(s) 
when the final specifications are published. If there is unutilized 
set-aside available, NMFS, at the request of the Council, could publish 
another RFP for either the second or third years of the 3-year 
specifications. In this case, NMFS would release the unutilized portion 
of the set-aside back to its respective management area(s) for the 
first year of the specifications and any other year that yields 
unutilized set-aside after an additional RFP is published. The Council 
also may decide not to publish another RFP, in which case NMFS would be 
authorized to release the unutilized portion of the set-aside back to 
its respective management area(s) for all 3 fishing years covered by 
the specifications.

[[Page 56467]]

    (h) Any quota reallocated under subparagraphs (f) and (g) of this 
section may not be used solely as compensation for research.
    (i) Individual research projects may apply for the use of more than 
one herring research set-aside allocation. Proposals may request that 
the set-aside be collected separately from the research trip or as part 
of the research trip. The research compensation trips do not 
necessarily have to be conducted by the same vessel but must be 
conducted in the management area from which the set-aside was derived.
    (j) No more than 50 percent of the allocated set-aside should be 
taken before the research begins. If a research project is terminated 
for any reason prior to completion, any funds collected from the catch 
sold to pay for research expenses must be refunded to U.S. Treasury.
    (k) NMFS shall provide authorization of the research activities to 
specific vessels by letter of acknowledgement, letter of authorization, 
or Exempted Fishing Permit issued by the Regional Administrator, which 
must be kept on board the vessel.
    (l) Upon completion of herring research projects approved under 
this part, researchers must provide the Council and NMFS with a report 
of research findings, which must include: A detailed description of 
methods of data collection and analysis; a discussion of results and 
any relevant conclusions presented in a format that is understandable 
to a non-technical audience; and a detailed final accounting of all 
funds used to conduct the herring research.
[FR Doc. 06-8263 Filed 9-26-06; 8:45 am]
BILLING CODE 3510-22-S


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